Opening not constructed in accordance with design for accessibility

Defective - but not reasonable to award cost of rectification

Replace door with correct 920 wide door which includes rectifying alignment issue.

Not defective work for which the contractor is responsible

Not defective and also not reasonable to award the cost of rectification

Plans, permits, engineering and soil tests not required, generator not required and likely duration is 4 weeks

1. On the contractor's claim, the owner is liable to pay the contractor the amount of $35,553 calculated as follows.

1. On the owner's counterclaim, the contractor is liable to pay damages to the owner in the amount of $37,283.13 calculated as follows.

Rectification of works as identified by IOA Building Consultants

Cost of reinstallation of dental chairs see quote from Borg Dental Equipment

1. The contractor says that as no formal set off was claimed by the owner, that orders should be made for each party to pay the other. However, as the claims arise out under the same work agreement, I am satisfied that it is appropriate to make an order for a set off of the amounts to the paid.

1. I will reserve my decision in respect of any claim for interest and costs, and make orders providing the parties with an opportunity to make any application for interest or the costs associated with the proceeding.

1. I will make orders in accordance with these reasons.

[1] The owner did not rely upon this report at the hearing, however the owner submitted it could be received into evidence as a business record of the owner.

[2] One of the variations being claimed by the applicant was to supply and install front fence timber.

[3] The location of the sign, the change in size of the door between the staff room and sterilisation room to increase storage space and the size of the air conditioners installed, are defects claimed by the owner that the contractor claims were agreed changes to the works.

[4] [2007] VCAT 271, [134].

[5] Refer to BP Refinery Westernport) Ply Ltd v Hastings Shire Council (1977) 180 CLR 266 for the basis upon which a term may be implied into a contract.

[6] Way v Latilla  [1937] 3 All ER 759; Horton v Jones (No 2) [1939] NSWStRp 35; (1939) 39 SR (NSW) 305 at 319; M R Hornibrook Pty Ltd v Eric Newham Wallerawang Pty Ltd  (1971) 45 ALJR 523.

[7] Despite the payment being said to be for the cost of rectification of defective works, the total amount equates to the various claims in the counterclaim including the claim for delay damages.

[8] [2023] VCAT 942, [158].

[9] The Owners - Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067, 45.

[11] Owners Strata Plan 78465 v MD Constructions Pty Ltd [2016] NSWSC 162, 30.

[12] Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 ('Bellgrove') at 617 - 618 and 620.

[13] (2009) 236 CLR 272, [17].

[14] Clarendon Homes v Zalega [2010] VCAT 1202, [165]; Stone v Chappel [2017] SASFC 72, [255].

[15] [2010] VCAT 1202, [165].

[16] [1996] 1 AC 344; [1995] WLR 118.

[17] [2022] VCAT 1086, [47].

[18] [1977] Ch 106; 2 WLR 496; [1977] 3 All ER 129; [1977] ChD 106 (which had been quoted in Ruxley).

[19] [2020] NSWDC 514, [195] - [197].

[20] The contractor' reply submissions referred to this being a decision of the Full Court of the Supreme Court of South Australia, however clearly that is in error.

[21] Ruxley, [1996] 1 AC 344, 358.

[22] Contractor's further submissions, [7].

[23] Contractor's further submissions, [7].

[24] Contractor's further submissions, [7].

[25] Contractor's further submissions, [7].

[26] During the hearing and in the contractor's further submissions, [7].

[27] During the hearing and in the contractor's further submissions, [7].

[28] Contractor's further submissions, [7].

[29] Contractor's further submissions, [7].

[30] Contractor's further submissions, [7].

[31] Contractor's further submissions, [7].