1. Order the Respondent to pay to the Applicant $65,436.96.

1. The Applicants ("the Owners") are the owners of a dwelling house in Langwarrin ("the House").
2. The House was constructed by the Respondent ("the Builder") between 2007 and 2008 for another party and in March 2008 it was sold during the course of construction to the Owners. They settled the sale and moved into the House on or about 12 August 2008.
3. Shortly after moving into the House the Owners discovered various defects. They contacted the Builder on a number of occasions and the Builder sent out workmen to attend to their complaints.
4. Of the defects attended to, two substantial ones that were at least partially rectified related to the structure of the roof and the straightening of an internal wall that was out of alignment. The trusses of the roof were structurally inadequate and had to be reinforced and the internal wall had to be straightened, resulting in the loss of some floor tiles. This and other rectification work caused considerable inconvenience to the Owners who on one occasion had to move out of the House for 17 days.

1. The Owners sought legal advice and engaged a number of experts who inspected the House. These proceedings were commenced on 9 February 2011 seeking compensation for the cost of rectifying the defects.
2. The matter came before me for hearing on 12 June 2012 with four days allocated. Miss Kirton of counsel appeared on behalf of the Owners and Mr Oliver of counsel appeared on behalf of the Builder.
3. After hearing the openings of counsel I attended the site and spent the afternoon together with the experts, the parties and their counsel inspecting various parts of the House and in particular, the roof space.
4. There was a lay day on the second day due to the unavailability of the Owners' witnesses. The evidence concluded on the fourth day and submissions were made on the following Monday.

1. The only lay evidence was given by the second applicant, Mr Sawyer. The real issues in the case concerned the nature and extent of the defects and the method and cost of rectification.
2. Expert evidence was given on behalf of the Owners by Mr Casamento and Dr Baigent, both engineers, and by Mr Buchanan, a quantity surveyor. Evidence was given on behalf of the Builder by Mr McFarlane, an engineer, and by a building consultant, Mr McLennan, who also gave evidence as to the costing of the defects.

1. The major defect concerns the roof truss system. This was designed by a company called Pryda and manufactured and supplied to the Builder by another company. When installed, a number of critical parts of the trusses were missing so they did not have the strength that the design required.
2. Numerous shortcomings of the roof were noted by Mr Casamento in his first report which is accompanied by a large number of photographs. Many of these relate to relatively minor matters, such as the packing of the tile battens with inappropriate materials and gang nail plates of differing sizes, but the main complaint relates to the fact that certain essential stiffeners were missing from the trusses.
3. An attempt was made by the Builder to rectify the situation in accordance with instructions received from the designer of the truss system, Pryda. However the workmen charged with the task of fitting the additional bracing fitted it to the wrong parts and omitted it in other places where it was required. This work was done with the tiles of the House, or at least some of them, removed to reduce the weight on the trusses that were undergoing repair. When staff from Pryda returned to inspect the roof these deficiencies were discovered.
4. A second report was prepared by the Engineering Manager of Pryda, Mr Laphir, in which he refers to the earlier inspection and continues:

"The buckling webs have been adequately fixed and there is no evidence of excessive chord or web buckling".

Mr Laphir, who did not give evidence, goes on to point out in his report that further bracing is nonetheless required and sets out what still needs to be done. He then concludes:

"Apart from the few issues discussed above, there was no evidence of any significant buckling of web members or deflection of roof trusses. The roof planes and ceiling planes appear to be relatively level.

It is our opinion that once the above issues are rectified adequately, the roof trusses on this site will be elevated to a level of performance that is required to maintain the structural integrity of the roof structure.

It is also our opinion that all rectification work can be carried out in the roof space without having to remove and refix roof tiles."

1. The Builder's expert, Mr McFarlane went carefully through the roof, noting which structural members had been supported as required and which had not. He also noted that support had been provided to some structural members that did not require support. He recorded all of these matters in detailed notes which form part of one of his reports. He did not purport to carry out an extensive survey of the roof. Rather, the purpose of his inspection appears to have been to see to what extent the remedial work specified by Pryda had been carried out.
2. Mr McFarlane considers that the problems with the roof can be rectified by now installing the missing supports and that this can be done with the tiles in place as Mr Laphir had suggested. He also suggested that perhaps the extra work was unnecessary but the weight of expert evidence seems to be that it is.
3. Dr Baigent's opinion was that all the roof tiles should be removed before commencing the repair of the trusses because of problems to do with lack of access and the difficulty of making an engineering assessment of the roof as a whole. He said that the roof would have to be checked over by a qualified engineer after the repairs had been carried out in order to establish that it was then structurally adequate.
4. During the course of his oral evidence Dr Baigent said that it would also be necessary to check that the bottom chords of the trusses were not bearing on the internal walls of the House.
5. Mr Casamento said that before providing the missing supports, the tiles should be removed to relieve the stress on the trusses which he described as "buckled, bent and twisted" but the trusses that he identified during the onsite inspection as being deformed do not appear to be the ones that are lacking the necessary structural elements.
6. Nevertheless, it was not disputed that there are deficiencies in the roof as it is at the moment or that it is structurally inadequate.
7. It was generally acknowledged by the experts during their joint evidence that, if it was necessary to remove the tiles, this could be done in sections over the trusses that were to be reinforced.
8. Both Mr McFarlane and Mr McLennan disputed the suggestion that there were serious distortions in the trusses. When asked during the inspection to demonstrate which trusses were distorted Mr Casamento pointed to three. I recall that at least one of those, to my untrained eye, contained pieces of timber that were slightly bent.
9. Mr Casamento was asked by the other experts to produce his detailed notes of his initial inspection when the hearing resumed. These were produced and showed the distortions that he had measured. I accept his evidence in this regard because there is no contrary evidence from the other experts, none of whom appear to have undertaken a similar exercise. In fairness to them, these measurements were not described in Mr Casamento's report.

1. The substantial disagreement concerns whether the roof tiles need to be removed. The Pryda report said that it was unnecessary and so did Mr McFarlane. Both Mr Casamento and Dr Baigent said that the tiles would have to be removed. Some of the reasons given for that are not convincing. First, it is said that it is necessary to provide sufficient room to carry out the work but the tiles over the alfresco area will be removed which should provide plenty of access to the roof space and , having been in the roof space myself, I accept Mr McFarlane's opinion that there is no shortage of space in which to carry out the required work to the central trusses. Other reasons were to check whether there was anything else wrong, such as lack of tie-downs but the Respondent should not be required to pay for investigations as to whether there is anything else to be done beyond what has been detected. It is for the Owners to prove defects. It is not for the Builder to prove an absence of defects. Miss Kirton referred me to my recent decision in _Woods v Contractors' Bondin_g [2012] VCAT 500 where I found that a roof was defective and required replacement on the basis of observable defects but in that case the defects that were proved justified the replacement of the roof. I do not believe there is anything that I said in that case that would assist me here.
2. Miss Kirton pointed out, roof tiles will need to be removed from various parts of the roof in order to carry out other rectification work. That is so, but the costing of that work should be considered separately.
3. However I am satisfied that the tiles do need to be removed. Mr McFarlane said during his evidence that a structural member does not provide support until there is some deflection. Mr Casamento said that, if reinforcement were to be provided to a truss that was already under stress, that reinforcement would not provide support to the truss unless it further deflected, a situation which would be most undesirable considering that it is already overstressed. That being so, he said, the stressor, namely the load of the roof tiles, should be removed so that the truss can spring back and the reinforcement can then be added. That seems logical to me and so on the primary issue of whether the tiles require to be removed before the trusses are strengthened, I prefer the evidence of Mr Casamento and Dr Baigent.

1. As to the cost of rectifying the roof I have the evidence of Mr Buchanan and Mr McLennan. Initially, Mr Buchanan costed the removal and replacement of the entire roof of the House which amounted to a considerable sum. A second costing that he prepared related to removing the trusses, repairing them and replacing them which was even more. Finally, during the course of the hearing a third costing was given by him for the rectification of the trusses only. However it does not appear that he costed the specific defects identified by Mr Casamento. During the joint expert evidence Mr Buchanan explained how he had arrived at his figures and Mr McLennan provided an answer to each of the component parts.
2. In general, I prefer the evidence of Mr McLennan in regard to the costing of the roof repairs because it is more in line with the weight of the expert evidence as to what needs to be done. He costed the defects found by Mr McFarlane but said that if there were further defects, and Mr Casamento said that there were, that figure could be increased by up to 50%.
3. For the repairs to the trusses, I shall allow Mr McLennan's higher figure because I must find on the evidence that the defects identified by Mr Casamento are present. Mr Casamento is a well respected engineer and unlike Mr Mc Farlane, he appears to have conducted a very thorough examination of the whole roof albeit, he acknowledges that he did not record all of his observations in his report. It must be noted that Mr McFarlane was not asked to carry out a general inspection of the whole roof.
4. I am not satisfied that it is necessary to remove the roof insulation. If there is concern as to whether the bottom cords of the trusses are interfering with the internal walls, that observation could be made without having to remove all the insulation. There is no evidence that any roof sisalation needs to be removed or that the battens or valley gutters will be effected. There will be some work to do in other areas, such as the alfresco area that will affect the roof and require removal of tiles but that is costed separately.
5. It is not established that any of the other items Mr Buchanan has allowed for will be necessary. In particular, I accept Mr McLennan's evidence that it is not necessary to remove the hip tiles or the ridge tiles to carry out the roof repairs.
6. As to the rates allowed, Mr Buchanan allowed a rate of $65 per hour compared with Mr McLennan's $52 an hour. According to Mr McLennan, the rate specified in the well known guide, Rawlinsons, is $49.50 an hour. Mr Buchanan justifies his much higher figure on the basis of his experience. The onus is on the Owners to establish their loss and I am not satisfied that I should allow anything more than Mr McLennan's rate.
7. The amounts to be allowed, including profit and GST, are therefore as follows:
   • (a) Disconnect solar heating panel $261.00
   • (b) Strip roof tiles $1,746.00
   • (c) Repairs to trusses $12,904.65
   • (d) Re-lay roof tiles $4,121.00
   • (e) Allow 10% new tiles to replace damaged tiles $998.00
   • (f) Reinstall solar heating pan $330.00

1. Mr Oliver submitted that neither Mr Casamento nor Mr Buchanan were painting experts. He relied upon the New South Wales Court of Appeal decision on Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305. In that case, Heydon JA, after referring to various authorities, said (at para 85):

"In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" .

1. Mr Oliver objected to the receipt of any expert evidence from Mr Casamento about painting. He suggested that painting is outside his particular field of expertise, which is structural engineering. After hearing some evidence as to Mr Casamento's experience I ruled that the limited extent of his expertise in matters outside engineering would go to weight.
2. In the first place he has undoubted expertise in building matters and has given evidence before this Tribunal for many years. In the course of that he has inspected a great many properties for the purpose of observing building elements, albeit for the purpose of drawing conclusions as to engineering issues. In the second place he has had some building experience. In the third place, Mr McLennan has no specific qualification in painting either but has extensive building experience and in the course of that and his general training he has acquired sufficient expertise to offer an opinion on painting issues. Where the issue is to do with the appearance of the painting as it is here, that is something that can be pointed out. If I cannot see it myself it is unlikely that it will be allowed or indeed, complained about by the Owners in the first place.
3. The Owners complain that the paint used on the interior woodwork was to be a gloss paint and that instead, a semi-gloss paint has been used. The evidence on this point is inconclusive. I am not a painting expert and nor is Mr Casamento. Mr McLennan has general expertise in building matters including paintwork although he is also not a specialist in matters to do with painting.
4. Mr Casamento said that the paint did not look to him like gloss paint. Mr McLennan said that he was unable to say that it was not gloss paint. He said that the present appearance might relate to the time that has elapsed between the paint being applied and the present time or, in the case of the doors, the fact that it has apparently been sprayed on instead of applied with a brush. The time factor is unconvincing because the House is only three years old and this particular complaint was made by the Owners shortly after they moved in.
5. In the end, the onus is on the Owners to prove that the paint used was not a gloss paint and although I accept that they might have difficulty in proving that, I cannot find that a gloss paint was not used simply from the way the paint now appears to Mr Casamento and to me. There is no clear expert evidence that the paint used is not gloss paint and so the burden of proof has not been discharged.
6. As to the alleged painting defects, the defects in Bedroom 2, the passageway and the alfresco door jambs were agreed but those alleged in Bedroom 4, the bathroom and the Dining room were disputed on the ground that, according to Mr McLennan, they were not noted from the normal viewing position which is 1½ metres. It does not appear to be disputed that they were there, just that, not being noticeable at a distance of 1½ metres, they were within tolerance.
7. That measure is from the Guide to Standards and Tolerances 2007 ("the Guide"). It has often been said in this Tribunal that that document is a guide only, albeit a very useful one, as to what is considered acceptable. Building is not an exact science. The contractual obligation of a builder is not to achieve perfection but to carry out the work in a proper and workmanlike manner. If he does so then the work should be of an appropriate standard without noticeable defects.
8. What is or is not noticeable is a matter of observation. The point is, will the defect be noticeable at a reasonable distance, which the Guide sets at 1½ metres? I observed the paint in bedroom four and other rooms as requested by the parties and I could see the brush marks and poor coverage complained of. Similarly, I could see the faults in the bathroom but not in the dining room. Apart from what I could see, the skirting board in Bedroom 4 did feel rough as though it has not been properly sanded as Mr Casamento suggested.
9. I am not satisfied that repainting of the whole House is justified. Mr McLennan's assessment of the cost of making good the defects that he identified is $332.64. He allowed that sum for approximately half the defective items and so I will allow $665.00 for painting rectification, which includes a 20% margin and GST.

1. There were a number of complaints about the brickwork. It was claimed that an articulation joint on the north side of the House should be taken down and reconstructed because the ends of the bricks have been used to make half bricks at the join and they are of a different colour from the face of the brick. The difference is certainly noticeable and when I raised it with Mr McLennan he said that with bricks of this nature, one will always encounter the same situation at each corner of the House where it is the end of the brick that is seen next to the face of the full brick that is laid next to it. It seems to me that that is a feature of the bricks used and I accept Mr McLennan's evidence that it is not a defect.
2. The brickwork to the right of the back door shows mismatched mortar in various places on that panel of brickwork and I accept Mr Casamento's evidence that that is a defect. I do not however accept that the wider area identified by Mr Buchanan, which is from the articulation joint on the north side right around to the joint on the south side, needs to be redone. I will allow for the panel to the right of the back door, as one looks at the back of the House, and I think that rather than attempt to colour the mortar which has already been attempted with limited success, the better course is, as Mr McLennan suggested, to grind out the mortar and re-point it at a cost. There is no assessment of the cost of that. Doing the best that I can I assess it at $750.00.
3. An allowance should also be made to replace blown mortar on either side of the back door in the two small sections of brickwork which, I was told on site, should cost about $50.00.
4. Mr Buchanan suggested that the brickwork was not straight near the study windows on the north side of the House towards the rear at the garage. This was disputed by Mr McLennan and, after looking at the brickwork, although some of the perpends seem to be a little wide, I accept Mr McLennan's evidence that the workmanship is of an appropriate standard.
5. I will allow $800.00 for the brickwork.

1. A large part of the floor of the House is tiled, from the entrance, to the passageway on either side, then down to the kitchen and family room, the pantry and the laundry. A number of non-matching tiles were used but the problem was particularly exacerbated when the non-vertical wall, which was opposite the kitchen, was reconstructed in order to make it vertical. This left a gap between the edge of the tiles and the skirting board along the length of the wall and at each end of the wall. The two tiles which had been cut around the corner have been replaced with tiles of a noticeably lighter hue.
2. Other allegedly non matching tiles were pointed out to me next to the kitchen although I had difficulty noticing any difference in colour of those tiles. I was told that there were additional non-matching tiles but they were not pointed out to me at the on-site inspection.
3. There is a dispute as to what needs to be done. The Builder refers to Clause 11.01 of the Guide which says (where relevant):

"Where the Builder has to match tiles that are no longer available, a practical approach must be adopted. The use of a slightly different tile is not a defect if it is used with the written agreement of the owner".

1. I do not think that this clause has any application. It was not the Builder's job to match tiles that were no longer available. It was the Builder's job to construct the House in a proper and workmanlike manner using good and sufficient materials. It failed to do so and, as a consequence, a wall had to be re-positioned and some of the original tiles have been lost and must be replaced. For the replacement tiles, it is difficult to match the existing tiles. That does not seem to be the situation the above clause is directed to. Not only that, it is clear that in this case the Owners have not consented to the use of a non-matching tile.
2. Ms Kirton submits that, prima facie, the Owners are entitled to be put in the position that they would have been in if the contract had been complied with. She referred to the well known decision of the High Court in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 which generally supports that proposition.
3. In the case of Clarendon Homes (Vic) Pty Ltd v Zalega [2010] VCAT 1202, I considered the decision in Tabcorp and the various other authorities discussed in the judgment in that case and I set out what I thought were the principles to be derived from those cases (see paragraph 165). I still believe that to be an accurate summary of those principles.
4. The remedy sought by the Owners in the present case is an award of damages equivalent to the cost pulling up all of the floor tiles, an allowance of a 20% breakage rate in doing so, the scattering of the old tiles with the new tiles so as to disguise the difference in colour and the relaying of all of the tiles. It is proposed by the Owners to remove all of the tiles apart from those in the laundry and the pantry.
5. Mr McLennan suggested a similar solution but with a lesser number of tiles to be supplied. His proposal also did not involve pulling up all of the floor tiles.
6. I do not believe that it is reasonable that the Owners, having paid for a new house, should be required to accept a tiled floor with a patched appearance, particularly when one considers that the patching is within sight of the entrance and that the tiling is a feature, albeit not the dominant feature, of the House. I therefore think that I should allow the Owners' figure for rectification, which is $13,705.54.

1. Immediately to the left of the front door the stud wall projects beyond the level of the slab. Photographs of a section of brickwork that was removed to reveal the problem show the bottom plate of the wall to be partially supported on pieces of wood placed in the cavity. All experts agreed that this was not acceptable and that the defect must be remedied.
2. Mr McLennan suggested that it would only be necessary to take out approximately 2 lineal metres of brickwork 2 courses high in order to install the steel supports recommended by Mr Casamento. However I prefer Mr Casamento's evidence that the steel support is to be continuous and a continuous line of 5 metres of brickwork would need to be removed. He was the only engineer to give evidence on this issue. I cannot see that this could be done without demolishing the wall as Mr Buchanan has allowed for. I will therefore allow his figure of $2,796.00.

1. There were numerous plumbing issues but fortunately these were resolved at a figure of $8,199.40 (including GST) and that figure will be allowed.

1. There were numerous general items that do not fall into the above categories. I saw many of these on site. The popping nail (Item 62) could not be found and I am not prepared to allow it. The toilet seat (Item 54) was found to operate correctly and so it would seem that it has since been adjusted. That item will also not be allowed.
2. The missing lock on the laundry door is a contractual issue and I am satisfied that it should have been provided. I am not satisfied that the lintel over the alfresco needs replacement but it does need filling, sanding and repainting. I am not satisfied that its present appearance is due to a lack of maintenance by the Owners.
3. The costing difference for these items is partly attributable to Mr Buchanan adding a preliminaries percentage of 18.9% plus a 10% margin plus 10% GST whereas Mr McLennan allowed no preliminaries but a margin of 20% plus 10 GST. Although there is a difference in methodology, the object of both assessments is to ascertain a reasonable rectification cost that a rectifying builder would be expected to charge. In some cases I have preferred one assessment over the other. In others I have averaged the two figures because there is no reason to believe that one expert is more likely to be right than the other.
4. Some of the following items are accepted by Mr McLennan. The other general items that I find established follow (Item numbers are as per the Scott Schedule). For each of these I have generally adopted Mr McLennan's costings. Where the base figure is derived from Mr Buchanan and the scope of work is apparent and limited I have added 11% for preliminaries, 10% for margin and a further 10% for GST as Mr McLennan suggested.

Items 65, 73 Glass splashback and silicone $ 632.98

1. The Owners claim $10,672 for the cost of removal and storage of their goods and chattels plus $16,464 for alternate accommodation. That is based on 16 weeks of repairs during which the House will be uninhabitable.
2. The evidence does not justify a finding that the work will take this long. Mr McLennan thought that the work could be done within a week but that seems somewhat optimistic considering what has to be done. I will allow three weeks' alternate accommodation at $147 per night, which equals $3,087.00. It is also not demonstrated that any belongings outside the tiled areas will need to be removed so no allowance will be made for the cost of their removal and storage.

1. The amounts to be awarded are therefore as follows:

1. There will be an order that the Builder pay to the Owners $65,436.96. Costs will be reserved.