Pawar v Willoughby Homes Pty Ltd

Outline

1. On 17 February 2020 a work order was made, by consent and without admissions, in proceedings HB 19/13538 which were commenced by Mr Pawar (the owner) against Willoughby Homes Pty Ltd (the builder). On 27 May 2020 the owner signed a renewal application which sought a money order for $148,177.17. As a result, the principal issue in these proceedings is whether to make a money order, as sought by the owner, or another work order, as sought by the builder.

Jurisdiction

1. It is clear that the Tribunal has jurisdiction under the Home Building Act 1989 (HBA).

History

1. After the renewal application was filed on 01 June 2020, a notice of hearing was issued on 26 June 2020, indicating a hearing date of 11 September 2020. However, as only 90 minutes was allocated for that hearing, directions were made and on 14 September 2020 a second notice of hearing was issued. The builder failed to comply with the direction to file points of defence and evidence by 09 October 2020.

Hearing

1. Although the renewal application was listed for a two-day hearing, the first of those days was spent with the Tribunal being repeatedly requested to allow the parties more time to reach a settlement, only to find, at the end of that day, that an agreement could not be reached. As a result, on the second day there was cross-examination of witnesses, followed by oral closing submissions, the hearing being conducted using AVL (audio-visual link) facilities due to the COVD-19 pandemic.

Evidence

1. There was a late provision of proposed evidence by the builder, which was due by 09 October 2020 due to orders made on 11 September 2020. That evidence was not provided until after 5pm on Friday 22 January 2020, more than three months late. Further, given the Australia Day holiday on Tuesday 26 January 2021, the day before the first day of the hearing, that left one working day for the applicant's solicitor to consider that evidence and take instructions.
2. No explanation for the delay was provided beyond a submission that here have been "complications" in the office of the builder's solicitor. It is difficult to conceive what "complications" would provide an explanation for either a delay of more than three months or a failure to notify the Tribunal and seek an extension of time.
3. The Tribunal is placed in a difficult position when evidence is served late: reject it and proceed or admit the evidence which often results in an application for an adjournment and that raises more than a question of costs since this Division of the Tribunal receives more than 50,000 application a year which, assuming 250 working days in a year, means that the Tribunal is, on average, trying to resolve 200 applications each day.
4. There is now appellate authority for the proposition that case management principles are a relevant consideration: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 at [51] and AHB v NSW Trustee and Guardian [2014] NSWCA 40.
5. In this instance, as there was no satisfactory explanation for the failure to comply with the earlier orders of the Tribunal and no explanation of why that evidence was not served until one clear working day prior to a two-day hearing.
6. Even though the bulk of the evidence upon which the builder sought to rely was in the form of documents annexed to affidavits, to allow the builder to rely on those affidavits would be to move towards a position where parties can file what they like, when they like and without needing to either seek an extension of time or provide any explanation for non-compliance with earlier orders.
7. For these reasons, the builder's application to rely on four affidavits, copies of which were attachments to an email sent to the Tribunal at 10.34pm on Australia Day, late on the evening prior to the hearing, was rejected. However, when an issue arose during the hearing as to whether the owner's evidence provided a complete picture of what had occurred since the consent work order was made, documents annexed to those affidavits were admitted into evidence.
8. As a result, he following documents became exhibits during the hearing, using letters for the owner's exhibits and numbers for those of the builder: Exhibit A Affidavit of the owner sworn 01 September 2020 and annexures Exhibit B Email from the builder to the owner dated 22 May 2020 Exhibit C Affidavit of the owner's wife sworn 01 September 2020 Exhibit D Affidavit of the owner's solicitor sworn 01 September 2020 Exhibit 1 Pages 9-118, exhibited to Mr Willoughby's 22 January 2021 affidavit Exhibit 2 Pages 4-9, annexed to Mr Willoughby's 25 January 2021 affidavit Exhibit 3 The owner's affidavit dated 24 May 2020
9. Further, a number of documents were marked for identification: MFI 1 Owner's chronology of events MFI 2 Owner's written submissions MFI 3 Owner's supplementary outline of submissions

Relevant law

1. The provision in the Civil and Administrative Tribunal Act 2013 (CATA) which allows proceedings to be renewed is Clause 8 of Schedule 4 which provides: (1) If the Tribunal makes an order in the exercise of a Division function in proceedings, the Tribunal may, when the order is made or later give leave to the person in whose favour the order is made to renew the proceedings if the order made is not complied within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) May make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) May refuse to make such an order. (5) This clause does not apply if: (a) The operation of an order has been suspended, or (b)The order is or has been the subject of an appeal.
2. The words quoted above have been considered in a number of decisions which establish principles that can be applied to this case. In Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 (Vasudevan) it was determined that an order under paragraph 4(a) of Clause 8 can be made if four criteria are met: (1) the order is "other" than the order originally made, (2) the order is "appropriate", (3) the order is one that the Tribunal "may make … under [the CATA] or enabling legislation", and (4) the order is one "as [the Tribunal] could have made when the matter was originally determined".
3. In Vasudevan the Appeal Panel dismissed an appeal from a money order made in renewal proceedings following non-compliance with a work order, noting that the effect of such an order was that the homeowner was no longer requiring the builder to perform the contract but was instead terminating the contract and claiming damages for breach of that contract in the form of an order for the payment of money.
4. Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 (Bondarek) was a case where a landlord breached consent orders by not complying with a work order made under the Residential Tenancies Act 2010 (RTA). It was decided that it was not necessary for the order sought in the renewal application to have been sought in the original application. It is noted that, in this instance, the original application did include a claim for a money order, ie damages.
5. From Bondarek, at [44-45], it is clear that a renewal hearing does not involve a re-hearing of the initial application but instead requires a consideration of what to do next as a result of non-compliance with the earlier order. Further, that the Tribunal is not limited to a consideration of the evidence that was before the Tribunal which resulted in that earlier order.
6. Minifie v Maxwell [2020] NSWCATAP 30 (Minifie) was an appeal from a decision made in renewal proceedings which related to a dividing fence. The principles set out in Minifie at [37-41] were summarised as follows in The Owners Strata Plan No 79642 v Five D Pty Ltd [2020] NSWCATAP 110 as follows: 1. Renewal proceedings are a simple and practical method of enforcing and promoting compliance with Tribunal orders. 2. Jurisdiction arises if a party in "whose favour" an order has been made brings proceedings within 1 year of the date compliance with the order was due; and proves that order has not been fully complied with. 3. If the order has not been fully complied with (or not complied with at all), the Tribunal must focus upon what, if any, appropriate orders should be made to do justice between the parties, with reference to the original order made and all subsequent circumstances. 4. A renewal hearing is not a re-hearing of the original dispute, or a re-consideration of the merits of the original dispute; but to consider what to do next given the non-compliance with the original order. 5. In appropriate circumstances, in a renewal application the Tribunal may consider causes of action and remedies which were not available in the original proceedings.
7. Simply stated, in the present context, renewal proceedings are a way the Tribunal can deal with non-compliance with an earlier order by putting a party in the same position as if there had been compliance with that order.
8. Section 48MA of the HBA provides: A court or Tribunal hearing a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.
9. Galdona v Peacock [2017] NSWCATAP 64 noted that section 48MA provided for a preferred outcome, not a mandatory outcome. That case suggests that a work order would not be appropriate where (1) the relationship between the parties has broken down, (2) the builder has not acknowledged a poor standard of work, and/or (3) there are reservations as to the ability of the builder to rectify the work with due care and skill.
10. While those are the most common situations where a money order is made instead of a work order, the decision depends on the circumstances of each case.

Work order

1. The consent orders made on 17 February 2020 began with a work order which said: "An order that the Respondent Builder carry out those matters referred to in the agreement entered into between the parties today (the Agreement) by 11 May 2020." Since that agreement was handwritten, a typed facsimile is included as Appendix 1 to these reasons.
2. The Tribunal notes that the owner's affidavit (A17, ie paragraph 17 in Exhibit A) incorrectly suggested the word following the amount in paragraph 9 was "excluding", while it is clear that the word used in that paragraph was "including". Likewise, in that paragraph there is a reference to item "24" paragraph 20 refers to item 25. While those two matters may have been mistakes, that is what appears to have been recorded in the document.
3. Further, the reference to 11 May 2020 in order 1 was superfluous since the agreement made on 17 February 2020 required the work to be done within 12 weeks of that day and 12 weeks from 17 February 2020 is 11 May 2020.
4. Order 3 provided the owner with leave to renew these proceedings "at any time within 12 months" which has been done since the 17 February 2020 work order was the subject of an application to renew that was filed on 01 June 2020.

Documentary evidence

1. As the focus of this renewal application is on what occurred between the date when the consent order was made (17 February 2020) and the date when the 12-week period expired (11 May 2020) it is convenient to summarise what the evidence in the documents which became exhibits reveal, in chronological order. Documents provided by the builder have been added in italics to the summary prepared from the documents provided by the owner. 21 Feb 20 Owner sought schedule of works and work method statement. He also sought to seek a quote from Mr Matley and Mr Ratcliff. 02 Mar 20 Owner sent a follow-up email to the Mr Willoughby (SW). SW replied that documents sought should be ready "next week". He also requested that copies of emails to certifiers be sent to him. 14 Mar 20 SW said finishing documents that day, sought phone contact at 3pm. Owner replied, seeking copy of documents before phone contact. At 1pm SW emailed draft Schedule of Works for owner's consideration. (The Owner's affidavit says a document was provided - not annexed.) By phone, the owner suggested the schedule of works was incomplete. 17 Mar 20 The owner sought an amended schedule of works. 27 Mar 20 The amended schedule of works was provided. (The Owner's affidavit says a document was provided - not annexed.) The owner replied by phone, complained that item 25 not covered, said he had not contacted the certifier as no acceptable schedule of works. ​​​​​​​ SW asked if there had been any recent leaks. 28 Mar 20 Owner said he did experience leaks, said he would look at scope of works and, if it was acceptable, seek quotes from proposed certifiers. 29 Mar 20 SW sought photos or videos, obviously in relation to the leaks. 31 Mar 20 Owner sent an email to Mr Matley and Mr Ratcliff, copied to SW. 01 Apr 20 Mr Ratcliff declined invitation, saying he is not a certifier. ​​​​​​​Mr Matley said that, as a building consultant, he was willing to inspect. 02 Apr 20 Owner proposed that his expert, Mr O'Donnell, certify the works. 03 Apr 20 SW emailed request for fee proposal from Mr Matley, copied to owner. 06 Apr 20 Mr Matley's fee proposal sent to both parties, included 3 inspections. 15 Apr 20 SW replied, seeking to finalise appointment, suggesting 2 inspections. 17 Apr 20 Owner told SW there were matters he wished to confirm with Mr Matley. SW said OK and repeated his request for recent photos or videos. The owner sent Mr Matley an email raising a number of matters, including a request that he certify the work upon completion. 20 Apr 20 Mr Matley replied to the owner, his email being copied to SW. SW sent an email to the owner, expressing his agreement. 21 Apr 20 The owner sent an email to SW, expressing his agreement. 22 Apr 20 SW emailed Mr Matley, accepting his offer, seeking first inspection. ​​​​​​​SW emailed the owner, saying he is ready and wants to start asap 23 Apr 20 Mr Matley email both parties, suggesting time for first inspection. 27 Apr 20 SW sent owner amended schedule of works, sought 29 April inspection. Mr Matley said he could inspect at 8.30am on 29 April. SW asked owner if he had signed and returned Mr Matley's form. 28 Apr 20 Owner sought updated fee proposal and also indicated he would be trying to have his expert (Mr O'Donnell) attend that inspection. Owner told SW he was waiting on updated fee proposal. This email also said 8.30am on 05 May suited him for the first inspection. Mr Matley replied, with an updated fee proposal. ​​​​​​​ Owner replied, saying first inspection would be on 05 May. 29 Apr 20 Mr Matley noted late cancellation, sought confirmation of 05 May. Owner replied had 29 April had not been confirmed with him. 01 May 20 Owner rang Mr Matley then emailed documents to him. Mr Matley had signed agreement from SW, sought same from owner. ​​​​​​​ Owner sent his signed copy later that day. 05 May 20 The first inspection occurred, attended by the owner and Mr O'Donnell, SW with a carpenter, and Mr Matley. Mr Niland provided a report on his inspection with Mr Matley. 07 May 20 The owner alleges the builder's carpenter caused water damage after testing a box gutter. 10 May 20 Owner emailed SW, saying box gutter needs to be repaired/replaced. 11 May 20 The builder arranged for the carpet to be cleaned and dried. ​​​​​​​ SW emailed owner, seeking a three-week extension to complete work. 12 May 20 Owner replied, seeking to add conditions to three-week extension. SW replied that he had sent the owner's proposal to his lawyer. 13 May 20 SW sent email to Mr Matley, seeking an extension of time. Mr Matley emailed a letter, granting an eight-week extension. Owner's reply suggested Mr Matley had no power to grant extension. SW emailed owner, alleging deliberate delays by the owner. ​​​​​​​ Owner replied to SW, copying his email to Mr Matley. ​​​​​​​ Mr Matley replied to both the owner and the builder's SW. ​​​​​​​ Owner replied to Mr Matley, demanding he withdraw his letter. SW emailed owner, said he was ready, willing and able to do the work. Owner replied, seeking to impose additional conditions on the builder. 14 May 20 Mr Matley emailed Owner and SW. Owner replied with copy to SW. SW emailed owner. Owner replied to SW. 15 May 20 Owner emailed SW, claiming $112,255.14 plus 20% margin and GST. 22 May 20 SW emailed owner, disputing entitled to claim money order, relied on extension of time granted by Mr Matley, referring to inclement weather and alleging deliberate delay by owner in appointing Mr Matley. Owner rang SW, told him he had changed lawyers, and requested all future communications be via their lawyers. SW sms to Owner, saying roofers planning to work on 25 and 29 May. 25 May 20 The builder's supervisor came to the property but was asked to leave. 26 May 20 SW emailed the owner, noting his contractors were turned away from the site and alleging delay on the part of the owner. Owner's reply requested any further communication be with his lawyer. 11 Sep 20 The builder's lawyer wrote to the owner's lawyer, saying the builder remains ready, willing and able to complete the work
2. Exhibit 2 included a report from Mr Niland, a licensed roofer, indicating that he was present during Mr Matley's inspection on 05 May 2020 and also setting out the results of his tests.
3. The owner's affidavit indicated that a money order was now sought instead of a work order plus $3,450 for replacing carpet. That was said to be the result of water damage alleged to have occurred on 07 May 2020 "as a result of water testing carried out by a carpenter". The last paragraph of that affidavit summarised what was said to be the current state of the property at that time he swore that affidavit, ie 01 September 2020.
4. The owner relied on an affidavit of his current solicitor, Mr Kent which set out events from 22 May 2020, including an exchange of emails with Mr Matley, whose 25 May 2020 email included the following paragraph: It is my opinion if the Member in the course of their wisdom stamped as order, the time of 12 weeks for the Builder to complete the rectification work as per the Orders and the attached agreement. The parties, for whatever reasons, did not with due diligence procure someone like myself until 10 weeks into the Orders time frame. There is no way the Builder could then turn around, commence and work to complete all the rectification work as per those Orders! That is not reasonable!
5. Exhibit 3 was the affidavit of the owner dated 24 May 2020 which set out what the owner suggested was the work done by the builder after 17 February 2020, which evidence may be summarised as follows: 05 May 20 Three representatives of the builder and two roofers, with Mr Matley, inspected the box gutters, removed and replaced some eaves. 06 May 20 Two representatives of the builder tested the lower ground box gutters and replaced eaves in the balcony area. 07 May 20 Three representatives of the builder did water testing of the ground floor bedroom box gutter which damaged it and caused a water leak. 11 May 20 Carpet cleaner treated carpet by lifting and removing it and the builder's representative applied silicon. 12 May 20 Carpet cleaner reinstalled the carpets. 18 May 20 A tradesman did some external painting.

Oral evidence

1. The oral evidence at the hearing comprised the cross-examination of the owner and his wife.
2. Cross-examination of the owner addressed what was apparent from the documents, namely that it took from 17 February to 06 April to obtain a fee proposal from Mr Matley, and it was then not until 01 May that the owner signed his fee proposal. Further, that the proposed inspection on 29 April was put back to 05 May which then left less than one week for the work to be completed. It was also noted that the attachments to the builder's 11 and 12 May 2020 emails were not included.
3. During his cross-examination, the owner claimed he did not cause the delay in getting the consultant. It was also revealed that, in May 2020, prior to retaining his current solicitor, the owner obtained advice from his brother, who is a lawyer. As was noted in cross-examination, only four days after 11 May 2020 expiry of the 12-week period envisaged by the work order, the owner was claiming $145,931.67.
4. The owner accepted that from 05 to 11 May was not enough time to do the work and that a reasonable time to complete the work was 12 weeks. He gave his reasons for objecting to the builder being given a period of 12 weeks as (1) continuing water leaks, (2) he had been dealing with the builder since 2014, (3) the builder had been given 12 weeks to do the work, (4) the scope of works was not complete, (5) there were delays by the builder, (6) the builder had been given access, and (7) that the confined period for the work, from 05 to 11 May, was not his fault.
5. When asked if he asked the workers to leave on 25 May 2020, the owner suggested he didn't and he denied he asked his wife to tell them to leave. The owner admitted he had obtained a supplementary report from his expert, Mr O'Donnell, which report he said was with his solicitor, but had not been served as he was waiting on a defence from the builder. The owner agreed that the lawyer for the builder had written, seeking access, and that such letters had not been included in his evidence.
6. Upon being taken to pages numbered 4, 6 and 9 in Exhibit 2, the owner agreed that the first two of those three documents showed the builder was willing to attend as at 26 and 27 May 2020 but said he had indicated that all communications should be sent to his lawyer. In relation to the third document, being a letter dated 11 September 2020 which was sent to the owner's lawyer, which repeated the builder's willingness to complete the work, it was the owner's evidence that letter had not been sent to him.
7. In re-examination, in response to a leading question, the owner agreed with a suggestion he had not received a complete scope of works.
8. The owner's wife said that on 25 May, when she saw a roofing contractor at her home, she rang her husband and, after speaking to him, asked the supervisor to get Mr Willoughby to call her husband. When it was put to her that she wanted that contractor to leave, she did not accept that but, when it was put to her that she asked the supervisor to leave until she spoke to her husband, she agreed with that proposition.

Owner's submissions

1. The written submissions dated 09 September 2020 (MFI 2), it was contended that the 01 September 2020 affidavit of the owner "sets out all the events which have occurred since 17 February 2020". There was also a summary of what was said to constitute delay on the part of the builder in relation to the scope of works: 17 Feb 20 Work order made 21 Feb 20 Owner requested documents from builder 02 Mar 20 Follow-up email sent 14 Mar 20 Builder provided schedule of works, owner disputed that document 27 Mar 20 Builder provided revised schedule of works 27 Apr 20 Builder provided a further schedule of works
2. Although it was contended that no complete schedule of works was ever issued by the builder, it is to be noted that the owner was content to refer Mr Matley to what appeared in items 1-10 and 25 of the Scott Schedule contained in Mr O'Donnell's report.
3. In relation to the extension of time that was granted by Mr Matley, it was contended that extension (1) could not be made as the 12-week period had expired two days earlier, (2) without providing an opportunity for submissions from the applicant, (3) without the owner being advised of the request for such an extension. It was submitted that clause 10 catered for two situations, neither of which was said to be applicable, and the conclusion Mr Matley reached did not have the benefit of the correspondence which had passed between the parties. Further, it was suggested that Mr Matley's decision was made on the basis of what he considered reasonable, but his reasons fell outside the ambit of clause 10.
4. These written submissions also suggested the current state of the owner's premises is that the downstairs bedroom is not habitable, that the ceiling of the rear verandah has been removed to allow access for rectification work and that the owner is living in a dwelling with ongoing water leaks.
5. Supplementary submissions dated 21 January 2021 (MFI 3) noted that the owner engaged the owner on or about 23 April 2014 and commenced proceedings in the Tribunal on 24 June 2019 and the builder's non-compliance with directions made on 11 September 2020. It was contended that the Tribunal should make a money order in favour of the owner, against the builder, for $148,177.17, calculated as $122,255.14 plus a builder's margin on 20% and then a further 10% for GST, a further amount of $3,450 in respect of the cost of replacing the carpet in the downstairs bedroom and costs.
6. In oral submissions, after referring to paragraphs in the handwritten agreement upon which the work order was based, it was suggested two issues were raised: whether it was unreasonable for the owner to rely on the 11 May 2020 deadline and what was referred to as the purported extension granted by Mr Matley on 13 May 2020.
7. It was submitted there had been conflicting suggestions as to the time required for completion of the work and that there was no evidence of any work done to date. Further, that a stain remained after the work of the carpet cleaner sent by the builder. The owner's case is that it was reasonable to replace that carpet, which was said to be a small, uncontested claim.
8. The owner's case was that he had been proactive, but the builder had done very little, and that the builder did not seek an extension of time until after the 11 May 2020 deadline. It was said that the owner has been living in the house since 2016 and it is now 2021. However, the Tribunal notes that the owner, having commenced occupation in 2016, did not commence proceedings until 24 June 2019.
9. Reference was made to the decision in Hanna v Kersten [2019] NSWCATCD 26 ("Hanna") where renewal proceedings resulted in a money order replacing an earlier work order. It was contended that there had been a breakdown in the owner-builder relationship, that Mr Matley's grant an extension of time denied natural justice to the owner and that no scope of works had been finalised.

Builder's submissions

1. It was noted that that, of the 84-day period provided for the work, it took 73 days for the owner to sign a fee retainer for Mr Matley and that Mr Willoughby followed up the lack of progress on that topic on 14 and 27 March 2020. Further, that it was not until 6 weeks after the work order was made, by which time half the allowed period had elapsed, that the owner sent an email to Mr Ratcliff and Mr Matley.
2. Reference was made to 3D Design & Build Pty Ltd v Lynch [2016] NSWCATAP 229 at [37] ("Lynch ") in support of the proposition that there is no rule against a second work order being made. After noting that a second work order was made in Maiolo v Chiarelli [2016] NSWCATAP 81 ("Maiolo"), it was submitted this was a like case in that the delay had been adequately explained.
3. The builder contended that Mr Matley was entitled to grant an extension and noted that he had stepped aside after the owner protested the grant of that extension. It was submitted that the builder was ready, willing and able to do the work and that it would be unjust not to allow an extension of time as the owner would be unjustly enriched if granted the money order now sought after he cause or at least contributed to the delays.
4. It was also noted that the owner had obtained but not provided expert evidence and a submission was made, based on Jones v Dunkel [1959] HCA 8, that the Tribunal should infer that such evidence did not assist the owner's case.
5. As to who should be the 'certifier', it was submitted that either Mr O'Donnell, or a person nominated by Mr O'Donnell within 7 days, should be appointed. Alternatively, Mr O'Donnell and Mr Bournellis should be jointly appointed with each party to pay the cost of their own expert. Three inspections were suggested: (1) before the work commences, (2) when the area/s is/are opened, and (3) when the work is completed. Further, that the time for completion of the work should commence from the date of the first inspection.
6. It was suggested there was an inconsistency between the evidence of the owner and his wife as to what occurred on 25 May and why the contractors left on that occasion.

Submissions in reply

1. In reply, it was said there were requests for a work method statement and that there was an outstanding issue in relation to the non-inclusion of item 25. Further, that the builder had not put on evidence within time as to what was done.

Consideration

1. A superficial analysis of the evidence might lead to the conclusion that a consent order was made on 17 February 2020 and since, twelve weeks later, little or no rectification work was done, the Tribunal should now make a money order.
2. However, a close consideration of the evidence, notably the contemporaneous documents, warrants the following findings: 1. Despite the scope of work being identified as what appeared in "the report of Paul O'Donnell (the report) dated 24 June 2019 and corresponding to items 1 to 10 and 25 of the 15 page Scott Schedule", and despite a document headed "Work Method Statement" forming part of what was agreed between the parties on 17 February 2020, more than five weeks later, on 27 March 2020, the owner was still contending at the hearing that there was no acceptable schedule of works. 2. It took from 17 February 2020 to 14 March 2020 for the builder to provide the owner with a schedule of works. 3. That conduct of the builder was a cause of delay during the period from 17 February to 14 March. 4. The owner and Mr Willoughby had agreed on 02 March 2020 that such a proposal should be sent. 5. On 27 March 2020, the owner indicated that he had not contacted the certifier as he had taken the view that the schedule of works had to be complete first. 6. However, it was not until 31 March 2020, six weeks into the 12-week period, that the owner sent a proposal to Mr Ratcliff and Mr Mr Matley. 7. That conduct of the owner was a cause of delay during the period from 02 March to 31 March. 8. Despite a fee proposal being sent by Mr Matley on 06 April 2020, it was not until 28 April 2020 that the owner sought an updated fee proposal and it was not until 01 May 2020, more than three weeks after 06 April 2020, that the owner signed and returned a fee proposal. 9. That conduct of the owner was a cause of delay during the period from 06 April to 01 May. 10. A initial inspection that was to be held on 29 April 2020 was postponed almost a week, to 05 May 2020, at the request of the owner. 11. That conduct of the owner was a cause of delay during the period from 29 April to 05 May. 12. As a result, the initial inspection on 05 May 2020 occurred less than a week prior to the expiry of the 12-week period on 11 May 2020. 13. There was also a significant number of days of inclement weather during the 12-week period, including 14 days in March 2020. 14. The handwritten agreement on which the consent orders made on 17 February 2020 were based created a financial incentive for the owner to not have any of the rectification work certified as complete by 11 May 2020 since that would enable him to claim more than $100,000 from the builder. 15. The owner was aware of that financial incentive as he claimed $145,031.67 on 15 May, just four days after the 12-week period expired on 11 May 2020. 16. There is contemporaneous evidence that warrants a finding that the builder was ready, willing and able to carry out the rectification work. 17. After the expiry of the 12-week period on 11 May 2020, the builder remained ready, willing and able to undertake the rectification work, but the owner did not permit the builder to do so. 18. A review of the conditions which the owner sought to impose on the builder for an extension of time after 11 May 2020 were unreasonable, moreso given that it was the conduct of the owner that was the primary cause of the position, as at 11 May 2020. 19. The owner did not permit the builder to carry out rectification work on 25 May 2020.
3. Combining (1) the delay preparing a schedule of works, (2) the delay in sending a proposal to the certifier, (3) the delay in returning Mr Matley's fee proposal and (4) the delay in the initial inspection, the Tribunal finds that while the builder cause delay in relation to the preparation of a schedule of works, the owner caused or contributed to the delays which consumed the majority of the 12-week period.
4. In those circumstances, it is understandable that Mr Matley granted a request for an extension by allowing a further eight (8) weeks from 11 May 20202 for the work to be completed. With the benefit of the documents passing between the parties after 17 February 2020, the Tribunal accepts the following statement of Mr Matley, made in his 25 May 2020 email, as a correct statement of the position at that time: It is my opinion if the Member in their course of wisdom stamped as Orders, the time of 12 weeks for the Builder to complete the rectification work as per the Orders and attached Agreement. The parties, for whatever reasons, did not with due diligence and procure someone like myself until 10 weeks into the Orders time frame. There is no way the Builder could then turn around, commence and complete all the rectification work as per those Orders! That is not reasonable!
5. However, it is not necessary to consider the issues raised by the owner in relation to the decision of Mr Matley to grant an extension of time since the question which now arises for consideration is whether to make a work order of a money order.
6. Although the decision in Hanna at [92-106] contains a useful summary of the applicable principles, it is first instance decision in which the outcome reflected the facts of that case.
7. In terms of comparable factual situations, the present case is more aligned with what was said by the Appeal Panel in Lynch at [38] where is was said that "in circumstances where the delays were adequately explained and the circumstances are not such that the trust between the parties has diminished to the extent that a work order would be inappropriate, it may be quite appropriate that a work order be made on a renewed application." It is noted that Maiolo is another case in which an Appeal Panel sanctioned a first instance decision to make a further work order in response to a renewal application.
8. The reasons advanced by the owner against the provision of an extension of time do not support his view. First, there are continuing water leaks because the builder has not been provided with sufficient time to undertake the rectification work. Secondly, while it is correct for the owner to say he has been dealing with the builder since 2014, it is noted he did not occupy the house until 2016 and did not commence proceedings in the Tribunal until 2019. Thirdly, the builder was not given 12 weeks in which to do the work by reason of the delays which were caused or contributed to by the owner. Fourthly, the scope of works was sufficiently clear to not justify the delay occasioned by the owner on that point. Fifthly, while there was some delay on the apart of the builder, they were far outweighed by the delays caused by the owner. Sixthly, the evidence does suggest there has been a denial of access by the owner, albeit after the 11 May 2020 deadline. Seventhly, the Tribunal is comfortable satisfied that the confined period for the work, from 05 to 11 May in 2020, was primarily the result of the conduct of the owner.
9. In amplification of the fourth matter, the owner claimed, in his 27 March 2020 email, that he had not contacted Mr Matley because the schedule of works was not finalised, and he now contends that such a schedule of works has still not been finalised. However, on 31 March 2020 he contacted Mr Matley, describing the work by reference to items 1-10 and 25 in the Scott Schedule prepared by Mr O'Donnell and a scope of works that was annexed (but not provided to the Tribunal). There is an inconsistency in not contacting Mr Matley because there is no schedule of works, saying there is still no schedule of works, but contacting Mr Matley and attending his first inspection.
10. There are a number of reasons why the Tribunal considers the evidence in support of the owner's case should be viewed with caution: 1. The reference to versions of a schedule of works that were not provided which, if done, would have enabled the Tribunal to assess whether or not the matters raised by the owner were of any substance. 2. The omission is relevant emails that were provided by the builder, such as a 22 April 2020 email in which a desire was expressed to commence the work as soon as possible. 3. His attempt, in his oral evidence, to suggest that there was no denial of access on 27 May 2020 was unconvincing. 4. His suggestion that he was not told by his lawyer of the 11 September 2020 letter from the builder's lawyer is difficult to accept. 5. Despite having obtained expert evidence, no such evidence was placed before the Tribunal. While that may have been a forensic decision of the owner's lawyer, it created a situation where the builder is entitled to an inference that such evidence would not have supported the owner's case.
11. Having regard to the principles set out in Minifie, the Tribunal now considers what are the appropriate orders to make in order to do justice between the parties, having regard to the original order made and all subsequent circumstances.
12. The Tribunal is satisfied that (1) the builder has provided adequate explanation for the delays that occurred, (2) the builder has been ready, willing and able to carry out the rectification work, (3) rectification work would have commenced but for the conduct of the owner, (4) it would be unjust to award the owner a money order in circumstances where he caused or contributed to the delays that occurred, and (5) the evidence is not sufficient to displace the statutory preference contained in section 48MA of the HBA.
13. In view of the problems that arose with the consent orders made on 17 February 2020, any work order needs to address the following matters: (1) delineation of the rectification work in a schedule or works (ie what matters are to be addressed), (2) a work method statement (ie how the rectification work will be done), (3) choice of an independent expert (not a certifier since that word is used to denote a person who ensures compliance with council requirements), (4) communications with the independent expert not being copied to the other party, (5) the number of inspections, (6) the appropriate time period, (7) who should pay for the cost of the inspection(s), (8) access, and (9) the financial incentive for the owner to delay the completion of the work. Each of those matters is considered below.
14. First, the schedule of works should be described by reference to items 1 to 10 and 25 in Mr Donnell's report as those were the defects identified both in the consent order made on 17 February 2020 and in the owner's 31 March 2020 email to Mr Matley.
15. Secondly, there is utility in having a work method statement in which the builder sets out what it is intended to be done to rectify those defects. While the owner is entitled to see that document, there is no utility in have that statement scrutinised by the owner who does not have the expertise of a builder. However, there is utility in having that work method statement approved by the independent expert before the work commences.
16. Thirdly, it is noted that the builder's counsel contended for the independent expert to be either Mr O'Donnell or a combination of Mr O'Donnell and Mr Bournellis. The potential difficulties of a joint appointment include that inspection times will become more difficult and there is a possibility they will hold differing opinions. For those reasons, the preferable course of to appoint Mr O'Donnell as the independent expert, deliberately not using the word certifier as it is commonly used in a different situation which may give rise to confusion.
17. Fourthly, it is necessary to make clear that Mr O'Donnell's role is to be that of an impartial expert and not an advocate for the owner. Further, given what occurred in relation to Mr Matley, it will be noted that a copy of any communication in relation to the work order between any two of (1) the owner, (2) the builder's Mr Willoughby and (3) Mr O'Donnell is to be provided to the third person.
18. Fifthly, as to inspections, it is clear that there should be three inspections: one to ascertain the current position, a second at what Mr O'Donnell considers to be the appropriate hold point (before what is done is no longer visible) and a third when the work is completed.
19. Sixthly, as to time, the Tribunal adopts the period of 12 weeks as appears in the consent order. However, given the risk of delay in finalisation of the work method statement, that 12-week period should commence to run from when that work method statement is finalised but a timetable for the finalisation of that work method statement will also be necessary so that process does not become a source of delay. Further, it will be necessary to provide for Mr O'Donnell to be able to grant an extension of time since the 12-week period may be impacted by matters such as inclement weather or COVID-19 movement restrictions.
20. Seventhly, since the defects are the result of the builder's work, it is the builder who should pay for the cost of Mr O'Donnell's inspections.
21. Eighthly, it will be necessary for the owner to provide reasonable access. It is also convenient to here that the builder needs to bear in mind that the house in which is working is already occupied.
22. Ninthly, the work order will not include any default money order so as to remove any financial incentive that may operate against the completion of the work order. While that could be said to be contrary to what was agreed in the consent orders made on 17 February 2020, the making of a money order instead of a work order should be a matter for the Tribunal as can be seen by the fact that these renewal proceedings were required when the rectification goal of the original work order was not achieved.
23. There was also a carpet claim for $3,450 for the cost of replacing carpet in the downstairs bedroom. As there was no cross-examination of either the owner or his wife in relation to that claim, and no submissions were made on behalf of the builder against that claim, an amount of $3,450 will be awarded in respect of that claim since the evidence satisfies the Tribunal on the balance of probabilities in relation to that claim.

Costs

1. Although the owner's solicitor sought an order for costs, that was made on the basis that a money order would be made. No submissions as to costs were made by counsel for the builder. In those circumstances, the orders will cater for any application for costs.

Orders

1. For the reasons indicated above, the orders that will be made are as follows: 1. The builder is to carry out rectification work in a proper and workmanlike manner in order to address the defects identified as Items 1 to 10 (inclusive) and 25 in the Scott Schedule annexed Mr O'Donnell's 24 June 2019 report. 2. Mr O'Donnell (or such other person as he in his sole discretion may nominate if he is unavailable) is to act as an independent expert in relation to that rectification work and not as an advocate for either the owner or the builder. 3. Any communication by the owner, the builder or the independent expert in relation to these orders is to be in writing and is to be sent to both the other parties. 4. No later than seven (7) days from the date of this order, the builder is to provide the independent expert with a work method statement which specifies what work the builder proposes to undertake in order to rectify the defects. 5. No later than seven (7) days from the receipt of that work method statement, the independent expert is to either approve that work method statement or amend it if he considers such an amendment necessary and reasonable. 6. The owner is to provide reasonable access to the builder who should provide not less than 24 hours' notice of anyone intending to carry out that rectification work. 7. There are to be three inspections during the course of the rectification work: 1. initially, in order to ascertain the current situation, 2. during the work, at such hold point as the independent expert considers reasonable, and 3. upon completion of the work. 1. The rectification work is to be completed within twelve (12) weeks of the date of that approved or amended work method statement, but that period may be extended by such period as the independent expert considers reasonable having regard to matters including but not limited to inclement weather and any movement restrictions due to COVID-19 pandemic. 2. The cost of the independent expert is to be borne by the builder. 3. The builder is to pay the owner $3,450 immediately. 4. On or before 18 March 2021 any application for costs is to be made by providing written submissions to the Tribunal and the other party. 5. On or before 01 April 2021 any response to any such application is to be made by providing written submissions to the Tribunal and the other party. 6. Any submissions on costs are to address the question of whether costs can be determined on the papers (ie without the need for a further hearing).

Contract In settlement of the owner claims (subject to the work identified below being completed in accordance with this contract) and in settlement of any claims the builder may have in relation to outstanding money

1. Willoughby Homes Pty Ltd (the builder) will pay Kamaljit Pawar (the owner) $26,000 within 28 days of today's date.
2. The builder will carry out the work identified in Annexure "A" within 12 weeks (the work) from today's date.
3. Before commencing the work the builder will provide a schedule of works and a work method statement identifying, in as much detail as possible, how the work is to be carried out and when it is to be carried out.
4. The owner will give the builder access to carry out the work shown in the work method statement and the work schedule.
5. The builder acknowledges that the house in which the work is to be carried out is occupied and will use its best endeavours to minimise disturbance and inconvenience to the occupants.
6. The works will not be complete until they have been certified as having been completed by the certifier appointed by the parties.
7. The builder will pay the owner's legal and professional costs to date as agreed or assessed such costs to date not to exceed $32,616 (ex GST) on an ordinary basis.
8. The builder warrants that, save for the window balcony above the ground floor bedroom, the works will result in a house that does not leak.
9. In the event that the works are not completed the builder will become indebted to the owner in the amount of assessed by Mr O'Donnell in the Scott Schedule for items 1 to 10 and 24 being $112,255.44 (including 20% margin and 10% gst) less an allowance for any items certified as complete.
10. Should the builder be delayed by the certifier or inclement weather, the builder will be permitted a reasonable extension of time to be promptly notified to and assessed by the certifier provided that there will be no entitlement if the delay is caused by an act or omission of the builder.
11. The parties will appoint Mr Geoff Matley or Mr Paul Ratcliff or, if neither of those gentleman is available a person nominated by the Tribunal to act as certifier, the parties to be jointly and severally responsible for the certifier's fees and each agreeing to pay half those fees.
12. The parties agree to cooperate and use their best endeavours to bring about the appointment of the certifier.
13. The certifier will be given the opportunity to and will inspect the works immediately prior to and during insertion of flashings, and when the builder notifies the certifier that the works are complete and any other time the certifier sees fit.
14. The certifier will certify that the works have been carried out 1. in accordance with the statutory warranties contained in s18B of the Home Building Act 1989 (the HBA) (which should be taken to have been expressly set out in the agreement). 2. in accordance with all applicable codes and standards 3. in accordance with the scope of works of annexure A.
15. Clauses 19, 20 and 22 of the contract between the parties signed by the owner on 24 April 2014 are treated as forming part of this contract as if they were reproduced and set out herein.
16. Should the works not be completed within 12 weeks the builder will be liable to the owner for any further legal and professional costs involved in proceeding to enforce payment of the debt referred to in paragraph 9 hereof.
17. It is agreed that there will be a six year limitation period stipulated in s14 of the Limitation Act 1969 in relation to any breach of this contract including the variation identified in paragraph 14 herein.
18. Should the works not be completed within 12 weeks the builder acknowledges that the Tribunal will be entitled to make a money order in respect of the amount to which it is indebted to the owner pursuant to clause 9 hereof and will raise no objection or defence to such an order being made, provided that nothing in this agreement is intended to confer exclusive jurisdiction upon the Tribunal to enforce the debt.
19. In the event that the owner is entitled to seek a money order, the builder must be afforded 7 days to make payment prior to such order being entered.
20. It is the intention of the parties that the scope of works in annexure A is to be a rectification of the works identified as defective in the report of Paul O'Donnell (the report) dated 24 June 2019 and corresponding to items 1 to 10 and 25 of the 15 page Scott Schedule (the Scott Schedule filed in the Tribunal proceedings between the parties. The certifier shall be entitled to refer to the report and Scott Schedule in interpreting the scope of works and determining whether or not the works can be certified as complete.

WORK METHOD STATEMENT A. All works to comply with all Safety Standard and Local Government regulations. B. All works to comply with NCC and its called up standards, particularly A 4773 -1 and A 4773 - 2. C. Flashing at roof abutment Point 9.6.2.4 D. Must instal sarking in all areas and all of the building repair and seal to prevent ingress of water.

1. UPPER LEVEL ROOF 1. Repair leak issues South and West elevations 2. Flashings at valley to have overflashings 3. Roof line to be straightened so tiles do not kick 4. All box gutter & parapet flashing repair and seal so they do not leak. 5. Brick nib protrusions, flash seal and watertight 6. Repair leaks, South western elevations
2. LOWER LEVEL ROOF 1. Generally all elevations 2. Flashing at roof abutment: all elevations seal and repair so they do not leak and done in accordance with AS 4773.
3. GUTTER AND DOWNPIPES particular Alfresco on North West and South elevations All box gutters require repair and seal to roof abutment flashing (overflashing) and roof iron and box gutter junction. Underflashing - to be installed in compliance with the NCC Code so they do not leak
4. SKILLION ROOF A (all North elevation skillion roove, seal and repair as above under and overflashing: AS 4773 flashing at roof abutment
5. SKILLION ROOF B (East and West elevation) Areas - front over garage; North east elevation and all of the South elevation over and under flashing to be repaired and sealed in accordance with NCC and AS 4773
6. SKILLION ROOF C (in particular Laundry skillion roof, Areas - all other skillion lover level rooves, flashing to be repaired in accordance with NCC and AS 4773 Sealed top (over) and lower (under) flashings
7. VALLEYS All valley flashing to be installed at the edge of the roof sheeting and gutter junction where underflashing needs to be installed, to seal, weatherproofing in accordance with the NCC.
8. EAVES Leaking and water stains and drainage to be repaired in the following areas: The upper level 1. Bed & verandah also sagging with gaps to fascia 2. Western elevation under the brick nibs upper level 3. Eaves under the western verandah curve balcony eaves
9. FASCIA As above repair over Bed/Verandah I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2022