Powarchuk v Kassab (Building and Property) [2023] VCAT 923 (9 August 2023)

DOMESTIC BUILDING CONTRACTS ACT 1995 (Vic) and AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012 (Vic); contract for roof plumbing services; owners sue individual and sue in the alternative a company of which the individual is a director; finding that the owners contracted with the company; finding that the company is a person which has entered into a contract to carry out plumbing work and has caused or permitted a person who is not permitted under Part12A of the Building Act to carry out that class of work in contravention of s221H(3) of the Building Act; restitutionary damages awarded in favour of owners against company; owners' claim against individual respondent dismissed; company's counterclaim dismissed; costs and reimbursement of fees reserved.

Bilal (also known as "Billy") Kassab t/as BTK Roofing (69 600 970 223)

Powarchuk v Kassab (Building and Property) [2023] VCAT 923

1. The second respondent (BTH Construction Group Pty Ltd) must pay to the applicants the sum of $17,750.
2. The applicants' claim against the first respondent (Bilal Kassab t/as BTK Roofing) is dismissed.
3. The second respondent's counterclaim against the applicants is dismissed.
4. The applicants have leave to make an application for interest within 30 days. Any such application must set out the basis of the claim, the rate of interest claimed, the period for which interest is claimed and all relevant calculations.
5. The applicants have leave to make an application for reimbursement of fees within 30 days.
6. Each party may make an application for costs within 30 days.
7. The Principal Registrar must refer any application for interest, reimbursement of fees or costs to Member Edquist.

1. Natalie Powarchuk and Mark Powarchuk own a house situated in Kellaway Street, Maribyrnong, Victoria. They have come to the Tribunal seeking damages for defective workmanship from the first respondent Bilal (or "Billy") Kassab or the second respondent BTH Construction Group Pty Ltd ("BTH"), which is a company of which Mr Kassab is a director. They also seek damages for the hire of an elevated working platform ("EWP"), commonly referred to as a cherrypicker. They also claim the return of money paid to or for the benefit of either Mr Kassab or BTH.
2. The Powarchuks filed points of claims some months after they issued the proceeding in August 2020 ("the first points of claim").
3. Mr Kassab and BTH engaged Mr Vincent Ryan, solicitor to represent them. On 26 November 2021, Mr Ryan filed a defence on behalf of Mr Kassab, a defence of behalf of BTH and a counterclaim on behalf of BTH ("the first defences".
4. The Powarchuks were given leave to amend their points of claim and served a new version on 28 February 2022 ("the amended points of claim"). The essence of the amended claim is that the Powarchuks entered into a contract with either Mr Kassab or BTH for the performance of plumbing works, but they have since discovered that Mr Kassab is not a registered plumber. As a consequence, they allege that under s 221HA of the Building Act 1993 (Vic) ("Building Act") and s 29 of the Domestic Building Contracts Act 1985 (Vic) ("DBC Act") Mr Kassab and BTH have a limited entitlement to payment under the contract.
5. In monetary terms, the Powarchuks seek $29,800 damages in respect of the cost of rectifying defective work performed by Mr Kassab or BTH. They also seek damages in the sum of $4,025.56 paid to the benefit of Kassab to Aluminium Scaffolds Pty Ltd for the hire cost of the EWP.
6. Alternatively, they seek reimbursement of the sum of $17,750 paid to Mr Kassab or BTH. This sum is not broken down in the amended points of claim, and from that document it not clear how that sum is made up. This is because the amended points of claim refer to a payment made of this $6,000, but to no other payments. It is only by reference to the initial points of claim that it becomes clear that they also claim reimbursement of $3,000 paid for box gutters and flashing in cash on 15 January 2020, and $8,750 in respect of materials required for wall cladding, also paid in January 2020.

1. Prior to the start of the hearing, neither Mr Kassab and nor BTH had filed a defence to the amended points of claim. Mr Ryan accepted responsibility for this in an email to the Tribunal dated 25 October 2022. In this email Mr Ryan foreshadowed an application to adjourn the hearing, but also enclosed amended points of defence for each of Mr Kassab and BTH ("the amended defences").
2. The essence of Mr Kassab's defence is that BTH was the party which entered into a contract with the Powarchuks. Mr Kassab contended that at all material times he acted in the capacity of employee and agent of BTH. He confirmed that he makes no claim for consideration payable under the contract.
3. In its amended defence, BTH confirms that it had been the party that entered into a contract with the Powarchuks on or about 17 December 2019. BTH makes a number of detailed allegations about the contents of the contract. It also makes some detailed allegations about how a type of cladding other than Colorbond came to be installed. BTH also says that between December 2019 and January 2020, Mr Kassab carried out works of "fitting the roof and a licensed plumber". It is to be noted that this language is ambiguous. It is not clear whether Mr Kassab performed the work of a licensed plumber or performed work as a licensed plumber. BTH also acknowledges receipt from the Powarchuks of $6,000, and a second payment of $8,750 to cover the cost of materials, including the cladding. BTH asserts that the hire of the EWP was the responsibility of the Powarchuks as owner builders. It is to be noted that BTH does not, in its pleading, acknowledge payment of $3,000 in cash by the Powarchuks.

1. BTH confirmed that it was relying on the points of counterclaim it had filed in November 2021. In this document it asserted that it had been engaged about 17 December 2019 by the Powarchuks to supply and install a roof deck and box guttering at their house and subsequently to install Colorbond cladding to form the walls of an extension to an existing dwelling. An unusual term of the contract was alleged, namely a proviso that if BTH could not complete the works before it had to commence a previously arranged job at Mt Buller at the end of January, it would return to complete the works immediately after completing the Mt Buller job.
2. According to the counterclaim, BTH supplied and installed the deck roof and box guttering before Christmas 2019. After Mr Kassab returned to site on 6 January 2020, there was a discussion regarding the choice of cladding, and Mr Kassab then ordered materials including the cladding chosen by Mrs Powarchuk. BTH commenced work and completed everything except installation of the flashing and casings by late January 2020.
3. Mr Kassab then went to Mount Buller to complete another job. When he sought to return to the site on 17 February 2020 he was refused access.
4. BTH alleges that because it was not allowed back on the site it was thereby deprived of earning the reasonable cost of finishing the works and seeks damages of $2,500. It alleges there were breaches of the agreement by the Powarchuks insofar as the EWP hired by them did not work appropriately, that they interfered with the works, that they made changes in the works, and that they had the works completed by others. BTH alleges that the Powarchuks repudiated the contract.
5. At the outset of the hearing, it was highlighted by Mr Ryan that no defence to the counterclaim had been filed. Mrs Powarchuk's explanation was that she and her husband considered that their position was made quite clear by their amended points of claim and that no further document had to be filed.
6. BTH at the opening of the hearing sought damages as follows:

(a) balance of the agreed contract price, $9,250; > > (b) the cost of flashings, casings and other materials, $2,500; > > (c) the cost of extra work, $2,500; and > > (d) interest.

As an alternative to damages, a claim of unjust enrichment was made.

1. At the opening of the second day of the hearing, Mr Ryan indicated that the claim for $9,250 was reduced to a claim for $8,750, that the claim for $2,500 in respect of the cost of flashings, casings and other materials was withdrawn and that the claim for $2,500 in respect of extra work was also withdrawn.

1. From the pleadings, the following issues can be identified:

(a) who were the parties to the contract? > > (b) what was the contract price of the contract? > > (c) was the contract varied by the requirement to create a Colorbond wall on an extension to the Powarchuks' home? > > (d) if so, what was the agreed price for the Colorbond variation? > > (e) how much has been paid by the Powarchuks? > > (f) who was responsible for the cost of hiring the EWP? > > (g) was it a term of the contract that the contractor could leave the site late in January 2020 to complete work on another job at Mt Buller? > > (h) did the contractor charge for plumbing works in circumstances where it was not allowed to do so by reason of s 221HA of the Building Act? > > (i) if so, what sum must the contractor disgorge to the Powarchuks? > > (j) did the Powarchuks repudiate the contract by interfering with the works? > > (k) did the Powarchuks repudiate the contract when they terminated it? > > (l) were there defects in the contractor's works? > > (m) if so, what damages should be paid or allowed to the Powarchuks in respect of the cost of rectification? > > (n) what sum must the Powarchuks pay or allow to the contractor for damages or in respect of unjust enrichment.

THE POWARCHUKS MUST MAKE AN ELECTION BETWEEN THEIR CLAIM FOR DAMAGES AND THEIR CLAIM FOR RESTITUTION

1. It is important to note that the Powarchuks' claim for damages is put as an alternative to the claim for reimbursement of monies paid, which can be characterised as a claim for the return of monies following a total failure of consideration. It is relevant to refer to Baltic Shipping Co v Dillon.[1] In that case Mrs Dillon, a passenger on a cruise vessel, suffered injury when the vessel sank ten days into a fourteen day cruise. In her action against the shipowner for damages for breach of contract, she was awarded damages which included the refunding of the whole fare and compensation for disappointment and distress. It was held by the High Court that the passenger was not entitled to a refund of the fare because there had not been a total failure of consideration. It followed that Mrs Dillon was limited to the compensatory damages. The relevance of the decision to the present case is that the High Court made it clear that a claim for restitution on the basis of a failure of consideration was an alternative claim to the claim for damages. As Justice Gaudron pointed out at [11] of her judgment, "If Mrs Dillon were to receive damages and a refund of the fare as well, she would, in effect, take the benefit of the contract without obligation to give consideration for it."
2. Because the Powarchuks claim for damages is inconsistent with their claim for restitution of monies paid, they must make an election. During the course of the hearing, they effectively did so by failing to present expert evidence:

Nor did they tender any direct evidence regarding the costs they had allegedly incurred in order to rectify BTH's work.

1. Because they did not effectively press their claim for damages at the hearing, I will proceed on the basis that they have elected to press only their claim for restitution of money paid on the basis that there has been a failure of consideration.

THE TRIBUNAL'S JURISDICTION TO HEAR THE DISPUTE

1. The Powarchuks contend that the work was subject to the DBC Act. This submission opens up a complex discussion. Section 5(1) of the DBC Act provides that the Act applies to work associated with the erection or construction of a home. However, s 6 sets out a number of exclusions from the operation of the DBC Act. Section 6(2) provides that the DBC Act does not apply to any work that the regulations state is not building work to which the DBC Act applies.
2. For the purposes of this proceeding, the regulations are the Domestic Building Contracts Regulations 2017 (Vic) ("DBC Regulations"). Regulation 7(h) of the DBC Regulations states that "plumbing work as defined in s 221C of the Building Act is excluded". It is necessary to explore whether regulation 7(h) applies.
3. Reference to s 221C of the Building Act indicates that "plumbing work" means any plumbing work which the regulations state is work to which Part 12A applies. Regulation 12(1)(h) of the Plumbing Regulations 2018 (Vic) ("") indicates that "roofing (stormwater) work" is included in the definition of plumbing work.

the construction, installation, replacement, repair, alteration, maintenance, testing or commissioning of any roof covering or roof flashing, or any part of a roof drainage system involved in the collection or disposal of stormwater and includes -

(a) the connection of any stormwater piping to -

(i) a below-ground stormwater drain; or

(ii) an on-site retention tank; and

(b) any design work that is incidental to, or associated with, any work described in this subregulation.

1. Regulation 25(2)(b) goes on to clarify that roofing (stormwater) work excludes work on a non-metallic roof. It follows that work on a metallic roof-as is the case here- is included in the definition.
2. Mr Ryan contends in the contractor's closing submissions that the limited definition of plumbing work in the Plumbing Regulations means that only the roof required a licensed plumber and the wall cladding and capping did not. I accept this submission, as it flows logically from the wording of the regulation. However, this is not determinative of the question of the application of the DBC Act. At this point it is necessary to go back to regulation 7 of the DBC Regulations.
3. Regulation (7) of the DBC Regulations relevantly begins as follows:

For the purposes of section 6(2) of the Act, any of the following types of work is not building work to which the Act applies if the work is to be carried out under a contract for only that type of work - ....

1. Because the work on the roof required a licensed plumber but the wall cladding and capping did not, the contract cannot be said to be a contract for only plumbing work as defined in section 221C of the Building Act 1993. Regulation 7 accordingly does not apply and the contract must be construed as a contract falling within the ambit of the DBC Act.
2. However, this finding does not affect the outcome of the case, because, for reasons which become apparent below, the Powarchuks press for relief under Australian Consumer Law and Fair Trading Act 2012 (Vic) ("ACLFT Act**"**) rather than the DBC Act.

1. There is no doubt that the roof contract falls within the scope of the ACLFT Act, as under s 184(1) of that Act the Tribunal has jurisdiction in respect of any consumer and trader dispute. A consumer and trader dispute is defined in s 182(1) as a dispute between a purchaser of goods or services and a supplier of goods or services in relation to the supply of goods or services. The definition clearly covers the present dispute which concerns a supply of plumbing materials and services by a contractor to the Powarchuks.

• 31 No issue regarding the jurisdiction of the Tribunal to deal with the Powarchuks' claim in so far as it arose under the Australian Consumer Law ("ACL")[2] was raised by Mr Ryan at the hearing. It was not suggested on behalf of the Powarchuks that they were relying on the ACL as a law of the Commonwealth of Australia. If that had been the case, then the Tribunal would not have jurisdiction, as has been established by the Court of Appeal recently in Thurin v Krongold.[3]

1. The ACL applies in Victoria by operation of s 8 of the ACLFT Act. Section 8 relevantly provides:

(1) The Australian Consumer Law text, as in force from time to time -

(a) applies as a law of this jurisdiction; and

(b) as so applying may be referred to as the Australian Consumer Law (Victoria); and

(c) as so applying is a part of this Act.

1. I proceed on the basis that the claim has been brought under the Australian Consumer Law (Victoria) ("ACL (Victoria)"). I take the view that the Tribunal has jurisdiction where relief is sought under the ACL (Victoria).

1. At the start of the hearing Mr Ryan did not press the request for an adjournment, and the hearing was concluded within the allocated two days.
2. Mr Powarchuk and Mrs Powarchuk appeared in person and gave evidence. Mr Ryan appeared on behalf of Mr Kassab and BTH. Mr Kassab gave evidence.

1. From the Powarchuks' evidence it is clear that they engaged Mr Kassab or his company to perform roof plumbing works in connection with the house building project they were conducting on their property. Mr Powarchuk was acting as owner builder for the project.
2. Mrs Powarchuk gave evidence that Mr Kassab had been identified as a plumber on Hi Pages. Mr Kassab came to the site in December 2019 and subsequently provided a quotation, #48849. It was confirmed by Mr Ryan that quotation #48849 was a contract document.
3. At the time that Mr Kassab or his company were engaged, the Powarchuks had erected the frame. The contractor's job was to install a wool blanket, create the roof deck, and put in guttering.
4. It appeared from the evidence of Mrs Powarchuk that she and her husband considered that they had made a contract with Mr Kassab personally. However, Mr Kassab insisted that his company was the contracting party.
5. Mrs Powarchuk confirmed that when the first phase of work was completed and invoiced on 19 December 2019, the invoice was issued by BTH. A tendered bank statement showed that the invoiced sum of $6,000 was paid into a BTH bank account on 23 December 2019. These matters are consistent with the work having been performed by the company and I accept that the weight of evidence supports this view. I accordingly find that the contract was formed between Mr Powarchuk and Mrs Powarchuk on the one hand and BTH on the other and that the contract was not with Mr Kassab personally.
6. It follows that the Powarchuks' claim against Mr Kassab must be dismissed.

1. The first phase of work completed by BTH related to the upper roof. According to the Powarchuks' points of claim, the work on the upper roof involved the supply and installation of a deck roof, box guttering and insulation (the Initial Works). The Powarchuks gave evidence that this work was performed over a week and was finished on 16 December 2019. It was invoiced on 19 December 2019 and $6,000 was paid a week later.
2. The Powarchuks seek reimbursement of this $6,000 as they assert the Initial Works were not compliant. They received no certificate of compliance from Mr Kassab or BTH. The Powarchuks engaged a licenced plumber to get the work redone. The rectification involved taking off the roof and replacing it.

1. There was a separate price for the installation of the box guttering and flashing. The price for this was agreed to be $4,000. Work on this phase was performed, according to the Powarchuks, on 8 and 9 January 2020. The Powarchuks say that they were requested by text to pay $3,000 for this work and that they paid in cash. Mr Kassab said in evidence that he was "pretty sure I received it". To put the issue beyond doubt, the payment of $3,000 was conceded at the hearing by Mr Ryan.
2. The Powarchuks seek reimbursement of this $3,000 as the work was not completed and ultimately had to be redone as Mr Kassab was not a licenced plumber.

1. There was a third phase of the works which involved the creation of small lower roof between the two sections of the building, with cappings and edging. The indicative price for this work $4,000. That work was not performed by BTH, and was not paid for. It is not in issue.

1. While Mr Kassab was on site performing the first phase of the work, the Powarchuks asked him to quote to supply and install Colorbond cladding and wall insulation on the extension which they had created. They did not know that he was not qualified as a plumber at this point.
2. Mr Kassab confirmed that he was asked to quote for the cladding. He emphasised that the Powarchuks were happy with his work on the roof when they did this. He priced the Colorbond cladding at $18,000. He was asked to accept a 10% discount for cash, but he refused. The price was confirmed as $18,000.
3. Subsequently, the price of the cladding was reduced slightly to $17,500. Mr Kassab explained this at the hearing by noting "He was always negotiating with me".
4. The Powarchuks paid $8,750 - which of course represents half of the adjusted contract price - to BTH on 17 January 2020. Payment of this sum was confirmed by Mr Ryan at the hearing. The Powarchuks seek repayment of this sum of $8,750. This claim was put on the basis that the material supplied and installed was not what they ordered.
5. On the afternoon of the first day of the hearing Mr Ryan suggested that the figure of $8,750 covered not only money paid in respect of the cladding material, but also about $3,000 in respect of other fittings acquired for the work.
6. Further clarification regarding the claim for reimbursement of $8,750 was provided by Mr Ryan at the opening of the second day, when he said that the $8,750 "was a payment towards a running account". At this point, invoices were tendered by BTH totalling well in excess of 9,000

1. Mrs Powarchuk gave evidence that they agreed to supply an EWP for use by BTH for a two week period. They paid $4,025.56 for its hire. Ultimately the EWP was hired for between 10 January 2020 on 13 February 2020, a total of five weeks. The job started slowly and the EWP stood idle when Mr Kassab went to another job at Mt Buller.
2. It might be thought from this evidence that the complaint about the EWP is not that the Powarchuks had to pay for it, but that they had to pay for its hire for an extended period and that BTH ought to pay for that extended hire period. That is not correct. It is clear from a letter headed "Complaint letter" dated 2 March 2020 sent by Mr Powarchuk to Mr Kassab that the issue is that because the work performed by BTH has to be done again the $4,025.56 paid for the hire of the EWP has been wasted. Presumably, they had to hire another EWP when they had BTH's work redone, although there was no direct evidence about this.

1. It is convenient to deal with the claim for damages for $4,025.56 in respect of the EWP at this point.
2. In my view, the claim cannot be maintained as it is a claim for damages and as such is inconsistent with the fact that the Powarchuks are making a claim for restitution of all the money they have paid to BTH. I refer to the discussion at [18]-[20] above. For this reason, I dismiss the claim.
3. If I am wrong as a matter of law in dismissing the claim on this basis, I add that the claim fails on a factual basis for these reasons. The cost of hiring the EWB was incurred over the period 10 January 2020 - 13 February 2020. My understanding of the timeline is that Mr Kassab came back to the site on Monday 6 January 2020 and remained on-site to the end of January. Presumably he left the site at the end of Friday, 31 January 2020. The Powarchuks had hired the EWP and could have returned it, but chose not to do so. This means that the EWP was at the site for 13 days in February 2020 when Mr Kassab was not present. This suggests, in my view, that the EWP had been hired by the Powarchuks for their use as well as that of Mr Kassab (and therefore BTH). I note in this connection that Mr Powarchuk was carrying out work as an owner builder. In the absence of clear evidence that the EWP had been hired at Mr Kassab's request for BTH's exclusive use, then the claim in respect of its hire must fail.

THE TERM THAT MR KASSAB COULD TAKE A BREAK AND WORK ON ANOTHER JOB

1. Mr Kassab's evidence was that "we had a deal I could leave the site". Specifically, it was agreed that before he placed the cladding, he was to be allowed time to finish a job at a site on "Mt Bulla" (sic). The arrangement reached was that he would order the cladding materials and would return to the site to complete the work.
2. The Powarchuks acknowledge that it was agreed that Mr Kassab could leave the site and return, but deny that this was agreed at the outset. They say that the issue was discussed only after they began to discuss the rectification of defects with Mr Kassab.
3. There may be only a few days difference between the time Mr Kassab says the term was discussed and the time the Powarchuks conceded it was discussed. This is because in the Powarchuks's initial points of claim it is asserted that after Mr Kassab did the cladding, the flashing around the windows started leaking and Mr Kassab made three attempts to rectify the leaks. It was presumably at this point in late January that the Powarchuks say Mr Kassab sought permission to go to another job before he returned to complete the rectification and finish the works.
4. Ultimately, it makes little difference when the arrangement was made. The key point is that on the evidence I find that Mr Kassab did ask for and receive permission to leave the site to complete another job before returning to complete the Powarchuks's project.

DID THE CONTRACTOR CHARGE FOR PLUMBING WORKS IN CIRCUMSTANCES WHERE IT WAS NOT ALLOWED TO DO SO BY REASON OF S 221HA OF THE BUILDING ACT?

1. In the initial points of a claim, the Powarchuks had pleaded that by operation of s 221HA of the Building Act that neither BTH nor Mr Kassab were entitled to any consideration payable under the roofing contract.
2. Section 221HA of the Building Act provides:

(a) enters into a contract to carry out plumbing work or specialised plumbing work; and

(b) the person -

(i) carries out that class or type of work despite not being permitted under this Part to do so in contravention of section 221D; or

(ii) causes or permits a person who is not permitted under this Part to carry out that class or type of work in contravention of section 221H(3).

(2) The person is not entitled to consideration under the contract unless the amount claimed -

(a) is not more than the amount of the costs reasonably incurred by the person in supplying materials and labour for carrying out work under the contract; and

(b) does not include -

(i) an amount for the supply of the person's own labour; or

(ii) an amount of profit by the person for carrying out work under the contract; and

(c) is not more than the person would have been entitled to recover for carrying out work under the contract; and

(d) does not include any amount paid by the person that is for the person's own direct or indirect benefit.

(3) A person may recover from another person in a court of competent jurisdiction, as a debt due to the person, any amount the person paid to the other person in respect of anything the other person -

(a) did in contravention of section 221D; or

(b) caused or permitted another person to do in contravention of section 221H(3).

1. In order to understand the import of s 221HA of the Building Act it is necessary to note that it sits within Part 12A of the Building Act which is concerned with "Plumbing Work". Furthermore, it is necessary to note that s 221H(3) of the Building Act provides:

(3) A person who owns, operates, manages or otherwise participates in, is employed by, or shares in the profits of, any business that carries out plumbing work or specialised plumbing work must not cause or permit any plumbing work or specialised plumbing work to be carried out on behalf of the business by a person who is not permitted by this Part to carry out that work.

1. BTH and Mr Kassab did not identify any licensed plumber who worked on the job in their respective first initial points of defence of November 2021. However, its amended points of defence dated 24 October 2022 BTH expressly identified Mr Kassab as the licensed plumber who performed the work, at [10]. However, this pleading is inconsistent with the concession made at the start of the hearing by Mr Ryan that Mr Kassab is not a licensed plumber.
2. When Mr Kassab was cross examined, he said that he had been registered as a plumber with registration number 120229 until 2022. He gave no explanation when Mr Powarchuk suggested the VBA website showed that that registration number to belong to another person. He insisted that 120229 had been his registration number in 2021, but produced no evidence of this.
3. Mr Kassab gave evidence that a licensed plumber named Moustafa had worked on the job. Later, in cross-examination, it became clear that Moustafa's surname was Moussa and that his licence registration number was 48849. Moreover, Mr Moussa was not called to give evidence.
4. Mr Kassab gave evidence that two other registered plumbers other than Mr Moussa also worked on the project also but BTH did not call either of them as a witness.
5. When Mr Kassab was asked why no compliance certificate had ever been issued, he said it was because the work was not completed by him, but was completed by others after he had left the site.
6. Although Mr Moustafa Moussa and the other two plumbers who allegedly worked on the site were not called as witnesses by BTH or by Mr Kassab. I draw no adverse inference against BTH or Mr Kassab under Jones v Dunkel[4] in respect of these witnesses_._ I merely highlight that I did not have the benefit of any evidence from any licensed plumber to confirm that he had worked on the Powarchuks's project and held registration as a plumber at the time that he did so.
7. Accordingly, in my view, the following findings must be made:

(a) BTH is a person which has entered into a contract to carry out plumbing work and has caused or permitted a person who is not permitted under Part12A of the Building Act to carry out that class of work in contravention of s221H(3) of the Building Act; > > (b) the consideration that BTH can claim is limited by s 221HA(2)(a) to "the amount of the costs reasonably incurred by the person in supplying materials and labour for carrying out work under the contract" and must, under s 221HA(2)(b), exclude any amount for profit.

1. In their initial points of claim, the Powarchuks seek restitution of $17,750 paid to "Kassab".
2. Insofar as $17,750 is claimed by way of restitution, there is potentially an issue of jurisdiction for the Tribunal insofar as s 221HA(3) of the Building Act enables a person to recover from another person any amount that person paid to the other person in respect of anything the other person caused or permitted another person to do in contravention of section 221H(3) in a court of competent jurisdiction as a debt due, (Emphasis added). The issue arises because the Tribunal may not be "a court of competent jurisdiction" for the purposes of s 221HA(3). This may be the case even though the proceeding is clearly a consumer and trade dispute within the meaning of s 182 of the ACLFT Act and the Tribunal has jurisdiction under s 184(2)(b)(iii) of the ACLFT Act to order the payment of a sum of money by way of restitution.
3. However, I make no order striking out the Powarchuks's claim for want of jurisdiction because Mr Ryan on behalf of BTH and Mr Kassab made no submission regarding the issue and accordingly the matter was not argued before me. Moreover, as will become clear, the $17,750 claimed by the Powarchuks by way restitution can equally be claimed on the basis of failure of consideration, in respect of which there can be no issue of jurisdiction. Damages by way of restitution can be awarded under s 184(2)(b)(iii) of the ACLFT Act and s 53(2)(b)(iii) of the DBC Act.

DID THE POWARCHUKS REPUDIATE THE CONTRACT BY INTERFERING IN THE WORKS?

1. Mr Kassab gave evidence that the Powarchuks were "very involved" in the project and that he was asked to carry out rectification works while he was still on site. He insisted that he never submitted "a finished product" and that he was terminated when he attempted to return to site on or about 12 February 2020, before his work was finished.
2. Mr Kassab deposed at the hearing that on at least two occasions when he returned to site in the morning he could see that a third party had tampered with his work. He gave an example of where a panel had been removed as the owners had apparently endeavoured to find out what was behind. Mr Kassab was in no doubt that Mr Powarchuk was involved in this activity for the reason that one day Mr Powarchuk questioned Mr Kassab about what was behind a panel and the next day Mr Kassab came to site and found that that panel had been removed using a crowbar.
3. These allegations were not put to Mr Powarchuk when he was first cross examined. As a matter of fairness, Mr Powarchuk was recalled later and the issue was put to him. He denied having removed any panels in order to check Mr Kassab's work.
4. In the points of counterclaim filed in November 2021, BTH and Mr Kassab assert that this interference constituted repudiatory conduct. I make two comments. First, in the absence of any photographic evidence regarding the removal of the panels I make no finding as to whether this did occur.
5. Second, even if I had been satisfied that such interference did occur, I would not have considered it to amount to repudiatory conduct. I note that, unlike an ordinary domestic builder who has possession and control of the building site during the course of the works, BTH was on the site as a subcontractor to Mr Powarchuk who was an owner builder. Accordingly, BTH did not have exclusive control of the site, particularly after work hours. I find that the Powarchuks were not breaching the contract merely by being on-site and inspecting the works. A further point is that even if Mr Powarchuk did lift a panel or two in order to inspect what was underneath, he was not hindering the progress of BTH's work because, even on Mr Kassab's evidence, the interference occurred overnight.

DID THE POWARCHUKS REPUDIATE THE CONTRACT BY UNLAWFULLY TERMINATING IT?

1. Mr Kassab was off the site from the end of January 2020 for almost two weeks. Under cross examination by Mr Ryan, Mrs Powarchuk agreed that on 7 February 2020 Mr Kassab had sent two messages. On 8 February 2020 he sent a third message. On 12 February 2020 Mr Kassab placed a call. I understand that he returned to the site on this day to continue work on the parapet wall flashing and to trim the deck flashings.
2. The first written complaint about Mr Kassab's work came in the form of a text sent by Mr Powarchuk to Mr Kassab sent on 12 February 2020. Mr Kassab had just returned to site. The text read "Billy I just got home that whole top of verandah is wrong it looks like it was just slapped on top to cover about to cry."(Sic)
3. The second was in the form of a text message sent by Mr Powarchuk on an unspecified date earlier than 27 February in which Mr Kassab was asked when he was thinking of coming back "as people are waiting for you to finish and there are defects everywhere..." A further text followed immediately in these terms:

If you are not capable of finishing vba said you need to issue certificate of compliance for roof works done to date if you do not they will chase it up. Let us know if you are capable or not as need to start moving this job.

1. I comment that at this stage it appears that it was still contemplated that Mr Kassab might return to site.

1. It was only in March 2020 that Mr Kassab received a long text of complaints about the work from the Powarchuks. The defects complained of included "Windows still leaking", "cheap and nasty cladding", "wrong installation techniques", "you could not even do paper wrap properly", "half the screws have no rubbers", and "downpipes wrong and flashings". The text concluded with this statement:

Hey mate. You step foot on my place police will be called.

1. Mrs Powarchuk gave evidence that the text had been sent because Mr Kassab had threatened her family. In evidence, Mr Kassab squarely rebutted this suggestion. On balance, I accept Mrs Powarchuk's evidence because the text is a contemporary document and the wording is consistent with a response to a threat.
2. There was a dispute about the date of this text. It appeared to me from the copy texts tendered that it was dated 2 March 2020 but Mrs Powarchuk gave evidence that it may been sent as early as 3 March 2020 but possibly as late as 13 March 2020. She could not identify the date from her phone. I think it clear that the text was sent on or after 2 March 2020 because on that day Mr Powarchuk sent to Mr Kassab a "Complaint letter".

1. Mrs Powarchuk confirmed that the letter was sent after it came to their attention that Mr Kassab was not a qualified plumber. Importantly, the letter does more than set out a series of complaints about the work that had been performed by Mr Kassab. Although he was not told not to come back to the site in clear language, the letter made it clear that this is the result which the Powarchuks were seeking. This is clear from the following passage:

I would like to resolve this matter by receiving a refund of payment and a compliance certificate of where the roof has been left. This decision has been made due to, Under the Australian Consumer Law, a service will be done with due care and skill, this guarantee means you must use an acceptable level of skill or technical knowledge when providing the service. This has not occurred, due to water leaking. As this is a major problem I would have not bought the service had I known beforehand the 'no experience in this service'. As a result I need to get someone else to remove all the wall cladding and tin roof to fix the job and pay for the entire job again, along with 8 weeks wasted with the $4000 cost of the cherry picker which needs to be hired again. The service was not achieved as it is normally suppose to and this problem cannot be fixed quickly or easily. (Sic)

1. The point to be noted is that the author - Mr Powarchuk - indicated he would like to resolve the matter by receiving a refund and a compliance certificate for the work performed, then go and get the job redone by someone else. It is clear that Mr Kassab was not welcome back on site.
2. Mrs Powarchuk, under cross examination, disputed that this letter terminated the contract. She said that it was Mr Kassab who decided he didn't want to come back.

1. Mr Kassab disputes that he advised the Powarchuks that he did not want to come back to complete the job. He said that after he had finished the other project at Mt Buller he wanted to return to the Powarchuks's site. I accept this evidence.
2. I think it is clear that termination of the contract was effected by the complaint letter dated 2 March 2020 and I make a finding to that effect. The termination was confirmed by the text sent on or after 2 March 2020.

1. Having identified the instrument of termination, I now turn to the question of whether the Powarchuks acted lawfully in refusing to allow Mr Kassab to return to the job. In my view, the Powarchuks can make no complaint about Mr Kassab having left the job for about two weeks in February because I have found that they agreed to this[5]. Furthermore, if the Powarchuks were merely complaining about defects which could be rectified easily within a reasonable time, then ordinarily it would have been appropriate for them to have allowed Mr Kassab (and thus BTH) an opportunity to carry out the rectification work. However, the Powarchuks are clearly not complaining merely about minor defects.
2. The words chosen by Mr Powarchuk are instructive. He refers to the "Australian Consumer Law" and then immediately refers to the service having to be done with "due care and skill". This of course, is a reference to the language the guarantee which applies to the supply of services to a consumer in trade or commerce arising under s 60 of the ACL (Victoria). Mr Powarchuk says "due care and skill" was not used as water is leaking, and he goes on to contend that "this is a major problem". These words suggest that what is being alleged is that there has been a major failure for the purposes of s 268 the ACL (Victoria) .
3. To give s 268 of the ACL (Victoria) context, it is important to note that an action against a supplier of services is created by s 267(1) of the ACL (Victoria), which relevantly provides:

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce, services to the consumer; and

(b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3-2 is not complied with; ...

1. As s 60 sits within Subdivision B of Division 1 of Part 3-2 of the ACL (Vic), I find that s 267(1) is engaged because there has been a breach of the s 60 guarantee.
2. I now turn to s 268 of the ACL (Victoria) ,which relevantly provides:

A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is a major failure if:

(a) the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b) the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; ...

1. I note that after referring to the leaking as "a major problem", Mr Powarchuk added "I would have not bought the service had I known beforehand the 'no experience in this service'". It is clear, in my view, that he is invoking s 268(a) of the ACL (Victoria).
2. Moreover, Mr Powarchuk's concluding words are "this problem cannot be fixed quickly or easily". From this, it appears that he is seeking to invoke s 268(b).
3. In connection with the issue of whether there has been a major failure in the delivery of services by BTH, I note that Mr Kassab is not a licensed plumber. I note also that Mr Kassab could not identify a licensed plumber who had been present on the job. Mr Kassab should not have carried out plumbing work without being supervised by a licensed plumber and BTH should not have entered into the contract in the knowledge that Mr Kassab would be carrying out plumbing work without putting forward a licensed plumber to take responsibility for the work.
4. For these reasons I find that there has been "a major failure" in the supply of BTH's services within the meaning of s 268(a) of the ACL (Victoria) because I accept that the Powarchuks would not have acquired BTH's services if they had been fully acquainted with these matters. Alternatively, I find that there has been "a major failure" because the services are substantially unfit for the purpose for which they were supplied because they were supplied by an unlicensed plumber, and accordingly the services cannot "easily and within a reasonable time, be remedied" to make them fit for purpose.
5. On these bases, s 267(3) of the ACL (Victoria) comes into play. It provides:

If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a) terminate the contract for the supply of the services; or

(b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.

1. I find that the Powarchuks were entitled to terminate the contract under s 267(3)(a) of the ACL (Victoria). As their termination of the contract was in this way lawful, they did not repudiate the contract by bringing it to an end.
2. Furthermore, s 267(4) of the ACL (Victoria) provides:

The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

1. Section 267(5) expressly provides that s 267(4) applies in addition to s 267(3).
2. I find that under s 267(4) of the ACL (Victoria) the Powarchuks can recover restitutionary damages in respect of loss or damage they have suffered by paying for services and goods in circumstances where there has been a total failure of consideration. The damages include the $6,000 paid for the upper roof and the $3,000 paid for guttering. There has been a complete failure of consideration with respect to these payments because the services were useless, having not been supplied by a licensed plumber.
3. The damages also include $8,750 paid by the Powarchuks in respect of materials. The reason why damages must be paid in relation to this item is set out below, at [116]-[135].
4. It follows, and I find, that the Powarchuks are entitled to restitutionary damages totalling $17,750.

Alternative claim for repudiation and damages at common law

1. If I am mistaken, and the Powarchuks are not making an application for relief under s 267(3) of the ACL (Vic), or if I am mistaken in finding that lawful termination under that section has been established, then the Powarchuks have an alternative claim for repudiation at common law. The claim arises because Mr Kassab was not a licensed plumber and he should not have carried out plumbing work. And BTH should not have entered into a contract in the knowledge that Mr Kassab would be carrying out plumbing work without being supervised by a licensed plumber.
2. I find that this alternative claim of repudiation is made out, and find, in the alternative to the lawful termination of the contract under s 267(3), that the Powarchuks lawfully rescinded the contract following its repudiation by BTH.
3. As an alternative to the claim for damages under s 267(4) of the ACL (Vic), the Powarchuks are entitled to restitutionary damages at common law in the sum of $17,750.

1. Much time was spent at the hearing discussing defects. A series of photographs was put into evidence by the Powarchuks and they were discussed sequentially. I have summarised the evidence regarding defects and incomplete work and set out my findings regarding these matters in Appendix 1 to these Reasons.

Disposition of the claim for damages for defects

1. As noted above, at [18]-[20], the Powarchuks made inconsistent claims for damages for defects and for restitution of monies paid by reason of failure of consideration. I have found above that the Powarchuks effectively elected to press only their claim for damages for restitution. The claim for damages for defects accordingly falls away. If it had been pressed, it would have failed for lack of evidence as the Powarchuks put forward no evidence about the identity of any contractor who they had engaged to rectify or complete the work and did not put into evidence any quotations or invoices to justify the claim for damages of $29,000 they made.
2. However, the evidence about defects is not irrelevant, because consideration of the items set out in Appendix 1 demonstrates that there were defects throughout the works. The extensive nature of the defects provide support to the evidence given by the Powarchuks that when they decided to engage another contractor to rectify and complete BTH's work they could not get a contractor to undertake that task. They had to engage a contractor to demolish BTH's work and start again. This is one of the bases upon which they claim damages on the basis of failure of consideration.
3. One of the defences relied on by BTH is that it never presented its work to the Powarchuks as finished. I reject this submission, as BTH rendered invoices. In particular, it invoiced of $6,000 for the installation of the deck roof and associated work which was paid on 23 December 2019. And in January 2020, Mr Kassab requested a further payment of $3,000 in respect of the box guttering and flashing which was paid in cash.
4. I now turn to the Powarchuks's claim for restitution of monies paid for materials. I have already indicated above at [106], that this claim is made out.

1. In terms of magnitude, the provision of cladding of a type other than that specified by the Powarchuks is easily the greatest issue. The price ultimately agreed for the provision of the cladding was $17,500. Fifty percent of this sum was paid, namely $8,750.
2. Under examination of Mr Kassab, it became clear that not all this money had been spent on the cladding. Mr Kassab said that the arrangement was that before he went to Mount Buller, he had to order everything required for the balance of the works. Some of the things ordered were "extra and over" what was required for the cladding stage. As I understood his evidence, he spent "around $3,000, give or take $100 or $200" on other materials.

The invoices tabled on the second day of the hearing

1. As noted in the introduction, on the second day of the hearing the nature of the claim for reimbursement of $8,750 was clarified. Rather than being a payment made in respect of specific materials, it was said to be a payment made towards a running account. At this point of the hearing, 18 invoices totalling well over $9,000 were tendered by BTH. Ten of the invoices were identified as being in respect of cladding materials. The balance of the invoices were said to relate to box guttering, flashings and roof battens.
2. During the hearing, I noted that the invoices said to relate to cladding were for $92.40, $22.44, $253.73, $33.28, $1,854.45, $532.48, $123.75, $3,903.94, $958.88 and $927.04. They total $8,702.39.
3. I asked Mr Ryan at the hearing to provide a list of the invoices he had tendered showing their allocation into the different stages of the work. He responded after the end of the hearing, at the end of October. The Powarchuks, on 4 November 2022, objected to me having regard to Mr Ryan's email, stating that the parties had had two years to lodge their evidence. Having regard to the fact that I had asked Mr Ryan to submit the list, I will treat it as having been tendered with leave, and look at it.
4. In Mr Ryan's assessment, invoices totalling $1,050.79 were associated with the first stage of the work (the upper roof). An invoice for $958.88 was said to be related to the second stage (guttering and flashing). These invoices are not in issue. The disputed invoices relate to the third stage of the work. On Mr Ryan's calculation they total $7,445.20.
5. The issue is whether money paid by the Powarchuks in respect of materials of $8,750 must be reimbursed to the Powarchuks.

1. The Powarchuks in their points of claim allege that they ordered "Colourbond" cladding. This was conceded by BTH in its points of defence, at [4(a)], and also expressly pleaded in its counterclaim, at [5(a)].
2. Further details of the claim are apparent from the letter of complaint dated 2 March 2020. Under the heading "Product" Mr Powarchuk writes:

I ordered and purchased Colorbond .55 interlocking wall cladding and received a cheaper and unsuitable product, to date the supplier has been unable to notify me with what the name of the product is. Durakote, which a few panels are yet most of the panels have no name. On 18th February 2020 MWJ cladding email to say the material supplied was a .42 High Tensile Steel supplied by Selection Steel called Monolith. After calling the supplier for MWJ, we have discovered and William from MJW has since said it is not this product and still cannot say what it is.

1. Mr Kassab's evidence about his selection of the cladding material appears to me to be unclear. Under cross-examination, when he was asked whether he had bought a product other than Colorbond, he said "No". This, of course, suggests that he thought he had bought Colorbond. However, Mr Kassab also deposed that prior to ordering, he showed the Powarchuks a range of products on his phone. He says they picked a particular product which he then ordered from MWJ Roofing.
2. It was put to Mrs Powarchuk in cross examination that Mr Kassab had shown her husband two samples of the cladding, one being matt and the other one being satin, and that they made a selection. She disputed this.
3. There is reason to doubt Mr Kassab's account because under cross-examination he was shown an email which was sent by Mr William Rhodes, the managing director of MWJ Roofing, to Mr Powarchuk dated 18 February 2020. One of the matters discussed in the email was a complaint which apparently had been made by BTH with regard to the panels ordered from MWJ Roofing. In the email, Mr Rhodes indicated that both he and his business partner had identified issues with the manner in which the cladding had been placed. Relevant to the circumstances in which the panels had been ordered is the following passage:

When initially approached by BTH construction in relation to this job, I sat down with him and discussed pricing and materials. We purchase, and offer, different steel suppliers and gauges for use in the roofing industry.

1. I consider this passage to be inconsistent with Mr Kassab's evidence that he ordered cladding from MWJ Roofing which had been selected by the Powarchuks. The email suggests that Mr Kassab made his own selection after having a discussion with Mr Rhodes. The email is therefore supportive of the Powarchuks's position, which is that they did not make the selection of the cladding material. I find for the Powarchuks in respect of this issue.
2. Mr Kassab raised a further defence in his evidence. He deposed that when the cladding was delivered to the site, the whole family assisted in unloading it. In this way, Mr Kassab says the Powarchuks became familiar with the product they were receiving and accepted it before it was erected.
3. Although neither Mr Powarchuk nor Mrs Powarchuks denied that their family had helped unload the cladding material when it was delivered by BTH, I note that Mr Rhodes' email confirms that at least part of the materials supplied for the job was a .42 Tensile Steel supplied by Selection Steel, called Monolith. Mr Rhodes noted that Monolith "is supposed to be an exact colour match for BlueScope branded Monument Colorbond". This would explain why the Mrs Powarchuks did not realise they were not getting Colorbond when the panels were unloaded.

Disposition of the claim for reimbursement of the sum of $8,750 paid for materials

1. It is not in issue that the Powarchuks specified Colorbond for the cladding they required. As noted, this was conceded by BTH in its pleadings. I find that BTH deliberately acquired, at least in part, the Monolith product. This did not comply with the specification, and the Powarchuks were entitled to reject it on the basis that it did not have the same thickness as .55 Colorbond, being made of .42 steel.
2. I find that the Powarchuks are entitled to an award of restitutionary damages in respect of the sum they spent on cladding material. They are entitled to that award whether the amount involved is of $8,702.39 as I initially understood, or $7,445.22 as contended by Mr Ryan. Whether the amount paid for cladding was $8,702.39 or only $7,445.22 is immaterial because whatever was spent on cladding was wasted because the cladding has had to be replaced.

1. I now turn to the other invoices relating to materials required for box guttering, flashings and roof battens.
2. My understanding was that this claim was included in the claim made in the counterclaim for $2,500 for materials. Mr Ryan said at the beginning of the second day of the hearing that this claim was withdrawn for lack of evidence. Having regard to the fact that the invoices were put into evidence, it may be that Mr Ryan was referring to the lack of evidence that the materials were delivered to the site and used by BTH.
3. In any event, it is common ground that the Powarchuks paid $8,750 in respect of materials. The balance of the $8,750 not spent on cladding was either spent on materials which were installed on the site by BTH and had to be replaced, or spent on materials but retained by BTH offsite. Either way, the Powarchuks are entitled to have the full $8,750 they paid for materials restored to them.

1. As noted in the introduction, in its points of counterclaim, BTH claimed:

(a) the balance of the allegedly agreed payment for the installation of cladding and wall blanket: $9,250; > > (b) the cost of flashings, casings and other materials: $2,500; and > > (c) damages in respect of the loss of opportunity to complete the works: $2,500.

2. I have remarked that on the morning of the second day of the hearing, Mr Ryan on behalf of BTH noted that the two claims for $2,500 were not pursued on the basis of insufficient evidence. It follows that the only matter to be considered is the claim for the balance of the allegedly agreed payment for the installation of cladding and wall blanket.
3. As noted, the claim was put at $9,250. However, this was based on an alleged price for the installation of the cladding and wall blanket of $18,000. At the hearing it was established that the adjusted price was $17,500. Having regard to the fact that it is common ground between the parties that $8,750 was paid by the Powarchuks for materials, the claim for the balance of the contract price must be $8,750 and must relate to labour rather than materials.
4. The relevant work was presumably the task of installing guttering, the cladding, and the wall blanket and associated works in the period after Mr Kassab returned to work after Christmas on 6 January 2020 and the time he left the site to go to the job on Mount Buller in late January.
5. No details of the hours worked were provided, let alone supporting documentation such as timesheets and payslips. It is, accordingly, not possible for me to make any finding of the value of the work performed on the basis of primary documents.
6. In her final submissions, Mrs Powarchuk highlighted that in order to get an occupancy permit under s 21 of the Building Act, it was necessary to have the plumbing work certified. She said that when they decided to engage a new licensed plumber, they couldn't find one who was prepared to continue with the work performed by BTH. For this reason, they had to start again. From their point of view, the work performed by BTH was worthless.
7. I accept Mrs Powarchuk's evidence on this point for two reasons. First, on the basis of the photographs tendered by the Powarchuks and discussed at the hearing there is evidence of substantial defects throughout the works. As noted, this evidence is summarised in Appendix 1. Second, this is not a case where the owners have come to the Tribunal seeking damages for defective work but have not yet taken action to rectify the defects complained of. It is a case where the owners have undertaken the necessary rectification work at their own expense and then come to the Tribunal in the hope of winning an award of damages. This demonstrates that they are sincere in their protestations regarding the poor quality of the work and the necessity for it to be rectified.

1. The first couple of photographs were said to demonstrate that BTH had used no battens. Mr Kassab's response was that a plywood backing was used for the cladding and that this was not a defect. I am not satisfied that a defect is established.
2. Photo 12 is said to show a defect in the installation of a window. I am not satisfied about the existence of this defect from the photograph but I note Mr Powarchuk's evidence that the window leaked. Mr Kassab had no evidence that the window did not leak and I accept, on balance, that there is a defect.
3. Photo 14 is said to establish an appropriate degree of "panning" or unevenness in the cladding. Mr Kassab objected that the photograph was taken in bright sunlight, and accordingly submitted the defect is not established under the provisions of the VBA Guide to Standards and Tolerances. In support of this objection he referred to photo 15, which showed the same wall in indirect sunlight, and no unevenness was visible. I have checked the VBA Guide and note that in section F, which is headed "Inspecting Surfaces From a Normal Viewing Position" it is stated that the surface should be viewed from a distance of greater than 1.5m in "non-critical light", or light that strikes the surface in a diffused manner. The light must not glance or be parallel to the surface. In my view, photograph 14 appears to have been taken at an angle and accordingly the light is glancing. The defect is not established from the photo. However, this finding does not mean that the cladding was of the material specified by the Powarchuks.
4. Photo 16 is said to show finished flashing where rivets have popped. Mr Kassab did not deny the defect but said that the work was incomplete. I reject this as an invoice was raised for the work.
5. Photo 17 was said to establish that in part of the building flashing had been installed. I consider that this was not necessarily apparent from the photograph. The defect is not established.
6. Photo 18 is said to demonstrate that the framing for the roof was badly formed which would have necessitated sheets to be cut. Mr Kassab appeared to accept the criticism, asserting that Mr Powarchuk was aware that he had had a problem with his carpenter and that Mr Powarchuk and his own father had had to do some of the framing.
7. Photos 20 to 23 were said to demonstrate that flashing had been cut short. These defects were self evident. Mr Kassab accepted there were defects, but said the works were incomplete. I reject this defence as the work had been invoiced.

1. Photo 8 was relied on to demonstrate that some cladding on the upper floor had not been completed at a corner. Mr Kassab's explanation was that the work was not complete. I think a defect is established, because an invoice was rendered for this phase of the work.
2. Photo 9 was said to establish that flashing had not been completed. In my view, this is evident from the photograph and a defect is established.
3. Photo 10 was said to establish that capping was not completed. This is clear. I find that this defect is established.
4. Photo 11 is said to establish that the vapour wrap did not extend along the whole length of the wall. This defect is clearly evident.

[2] The text of the Australian Consumer Law is contained in Schedule 2 of the Consumer and Competition Act 2010 (Cth).

[3] [2022] VSCA 226 (20 October 2022).

[4] [1959] HCA 8; 101 CLR 298; 32 ALJR 395.