Issue 3 - does the order made by the Tribunal on 19 July 2013 mandate demolition and reconstruction of the concrete rather than repair by grinding?
- The need to interpret an order in the present circumstances arises only where the Tribunal is required to determine whether the terms of any order have been properly complied with. It is in that context and on the basis of the issues referred to me for determination that I must evaluate the available evidence to determine whether a failure to demolish and reconstruct the conflicting works amount to a failure to comply with order 4 made on 19 July 2013.
- The applicants contend that the order made at mediation on 19 July 2013 was as follows;-
"in full and final settlement of all matters in dispute between the parties, the respondent will carry out the following repairs on or before 30 August 2013"
(1) articulation joints …
(2) profile subfloor vents …
(3) provide for to subsoil drain to divert water away …
(4) item 3c rectify concrete per schedule being "rectify poor concrete finish and incorrect grates and levels to patio and porch. Demolish and reconstruct."
(5) item 5 rectify stacker door per schedule, meaning "stacker door and screen doors - remove damaged doors, repair and install doors, rectify as required to frame, slab, finishes, tiles and paint. Repair may not be possible and a new door required."
- It is claimed the Tribunal mediation orders were regularly made pursuant to the statutory powers of the Tribunal and it is pointed out that the order has not been challenged by the respondent by way of any review or otherwise and that the respondent has failed to undertake the works required by the Tribunal orders on or before the prescribed date, namely 30 August 2013.
- The Tribunal had sought from the respondent a costing for the works and defects claimed by the applicants in the initial proceedings and on 18 July 2013 Mr Blackwell, on behalf of the respondent emailed Mr Staniland a costing sheet.
- By way of response the applicants prepared a schedule entitled R N & K E Staniland, [***] Road, New Lambton defects and Mr Staniland noted on the email enclosing the defects schedule "attached is our costing information for works we will seek to be included in the orders."
- The parties agree that at the commencement of the mediation, Senior Member Vrabac was provided with a copy of the defect schedule prepared by Mr Staniland and the parties progressed through the items in the schedule in a "line by line fashion" (statement of Robert Blackwell, 30 September 2014 par 16.)
- In cross-examination during the present hearings, Mr Blackwell conceded that he and Mr Staniland had argued and considered the defects of item 3c of the schedule and the need for demolition and replacement due to;
1. Incorrect grades
2. Incorrect levels
3. Poor concrete finish
4. Ponding of water on the patio outside the rear living area.
- The parties also discussed the possible need for a new stacker door as detailed in item 5 of the defect schedule and Mr Blackwell agreed that the matters referred in item 3c and item 5 were defects.
- At the conclusion of the mediation process Senior Member Vrabac asked Mr Staniland to write down what it was understood by the senior member, had been agreed between the parties. The document was then read and transcribed and parties were asked to sign that document to indicate that it accurately recorded what had been agreed during the mediation. Both Mr and Mrs Staniland and Mr Robert Blackwell, on behalf of the respondent signed the document and the Tribunal thereafter made orders in accordance with what had been noted.
- A copy of the orders were typed and forwarded from the Tribunal but no schedule of defects was attached thereto. It would appear that no attempt was made by either party to obtain the document referred to as "the schedule".
- It has been submitted on behalf of the respondent that the schedule could be either;
1. a version of the defect schedule held by Mr Staniland on which he made notations or,
2. the version provided to Senior Member Vrabac on which he made notations or,
3. the version held by Mr Blackwell on which he may have made notations although that copy has never been produced and there is no evidence as to whether notations were made on his copy.
- The respondent submits that, on balance, Senior Member Vrabac was referring to the schedule on which he had made notes and which was part of the Tribunal file. A copy of that document has been produced and it is clear that item 5 relating to the stacker door and screen doors is unaltered, a costing of $3,870.00 is set against the item in the schedule and a notation from the mediator agreed defect appears in his handwriting on the document.
- In relation to item 3c the notation including the words 'demolish' and 'reconstruct' remain on the schedule along with a costing of $5,800.00 and the handwritten notation apparently from the mediator agreed defect. There is a further handwritten notation against item 3c which the solicitor for the respondent submits is a reference to the words "agree to grinding" whilst counsel for the applicants submits that the words are "agree to pooling" which would refer to pooling as a result of incorrect grades and levels on the porch.
- Having reviewed in some detail the notations apparently made by Senior Member Vrabac on his copy of the schedule, it is in my view extremely unlikely that this particular document was destined or intended to be the schedule attached to the orders because it contains notations which appear to be personal notes or reminders for the mediator rather than a record of responses when each item was considered. The document also includes some mathematical calculations which ultimately appear to have given rise to the agreed payment of $22,500.00 although the basis for the calculation is not obvious on the face of the document.
- It is in my view more likely than not that the document referred to as the schedule in the orders made on 19 July 2013 was simply an unmarked copy of the schedule which was provided by Mr Staniland to Mr Blackwell on 18 July and which was given to Senior Member Vrabac at the commencement of the mediation. There is no evidence that Mr Blackwell had a schedule which was intended to be an attachment and it is not suggested that the document upon which Mr Staniland made notes, was intended for attachment to the orders.
- The first three work orders make reference to a pink slip building report and it is clear that the only building report in the possession of the parties at the time was a report of Peter Shepherd from Pink Slip Building Reports dated 20 June 2013. That report makes no reference to rectification of concrete or to the rectification of the stacker door but it was clearly intended to provide the basis upon which rectification work in respect of the first three items should be undertaken. I am satisfied that the only schedule available to the parties and to Senior Member Vrabac was the schedule provided by the applicant without additional writing.
- In the circumstances I am satisfied that when once incorporates the terms of item 3c in the schedule to the terms of the order rectification of the concrete finish to rectify poor finish, incorrect grades and levels to the patio and the porch requires demolition and reconstruction.
- I am satisfied on the probabilities that any specific issue of grinding to rectify the concrete was raised by Senior Member Vrabac after the terms of the orders had been finalised and as a suggestion of an alternate method of achieving an appropriate result. The issues between the parties should now proceed to determination based on the findings that I have made and it is appropriate in this circumstances that the matter remain part heard before me for that purpose.
- I have not for the purposes of the present issues made reference to the costing contained in the schedule which was described by Mr Staniland as his costing for items in dispute. The total claim in the schedule was $103,725.00 made up of individual components for each item claimed. Mr Staniland is an engineer and it is likely that he obtained the costings which were associated with each of the items of rectification when he included them in that document. It is noted that these costings were obtained in 2013 but those costings may well become a matter for further consideration when the claim is quantified. In the alternative, parties may wish to further consider methods of resolving the dispute before the matter is called to a final hearing after the next directions hearing.
J A Ringrose
General Member
Civil and Administrative Tribunal of New South Wales
3 August 2015
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 18 September 2015