Tanious v RJG Group Pty Ltd [2025] NSWCATCD 190;

McCartney v Orica Investments Pty Ltd [2011] NSWCA 337

Pownall v Conlon Management Pty Ltd [1995] WASC 117; (1995) 12 WAR 370

Tabcorp Holdings Pty Limited v Bowen Investments Pty Limited [2009] HCA 8 (12 February 2009)

X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181

1. In these proceedings the applicant's sued the respondent under the Home Building Act 1989 ('HBA') for defective work when it carried out residential building work to their strata lot. They also sued the second respondent who is the sole director of the respondent under the Design and Building Practitioners Act 2020 ('DBPA').
2. In these reasons I will refer to the applicants as the 'owners' and to the first respondent as the 'builder'.
3. I find that the owners' claim against the builder is a building claim as that term is defined in the HBA and that the Tribunal has the jurisdiction to hear and determine the owners' claim. I will deal with the owners' DBPA claim later in these reasons.
4. The evidence in the proceedings was contained in a two volume trial bundle which was exhibit A.

1. The parties entered into a Master Builders Association Residential Building Contract (BC4) in connection with the work of the subject of these proceedings. It was an express term of the contract that the warranties referred to in section 18B of the HBA would be applicable to the work to be carried out by the builder under the contract. Those warranties are as follows:

'(a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract,

(b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new,

(c) a warranty that the work will be done in accordance with, and will comply with, this or any other law,

(d) a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time,

(e) a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling,

(f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment.'

1. In schedule 3 of the contract there was a brief description of the work to be completed by the builder. What was stated was:

1. There was also an express term of the contract, clause 24, that there would be a Defects Liability Period of 12 weeks. Clause 24 set out a procedure whereby the owners would be entitled to give the builder a list of defects which the builder was required to make good.
2. At [5] of her statement Ms Tanious referred to a scope of work that she and her husband gave to the builder which is annexure B to her statement. Given the paucity of the description of the work to be carried out by the builder, I will have regard to the scope of work that was given to the builder if it becomes necessary to decide what work the builder was required to carry out.

1. The parties engaged experts to prepare reports on defective work which were filed in the proceedings. Mr S Nakhla prepared a report dated 9 October 2023 for the owners. Mr C. Nisbett prepared a report dated 8 April 2024 for the builder. There was no objection to either expert giving opinion evidence in the proceedings. Accordingly, I accept Mr Nakhla and Mr Nisbett as experts who have expertise and experience which enables them to give opinion evidence in the Tribunal in relation to building defects, including rectification of such defects.
2. In accordance with the Tribunal's directions the parties filed written closing submissions which I will refer to later in these submissions.

1. In his report Mr Nakhla states in an executive summary that he considered that there was a major defect in the ensuite floor tiles. In his opinion the cost of the rectification of this defect was $36,240.73. He also stated that there were 28 items of incomplete work and poor workmanship which he detailed in his report. He stated in his opinion that the cost of rectifying these items would be $25,699.74. Mr Nakhla's costings included preliminary costs, profit, overhead and GST.

1. In his report Mr Nisbett stated that in his opinion the works were incomplete and contained defects as a consequence of the actions of the builder (10.1).
2. Mr Nisbett agreed that the ensuite shower area was defective. He did not agree with Mr Nakhla's rectification methodology or his estimate of the rectification costs. Of the 28 items of incomplete items and poor workmanship referred to by Mr Nakhla, Mr Nisbett agreed that 18 of these items were defective. For the remaining 10 items Mr Nisbett provided reasons for not agreeing that there was defective work.

1. The owners' counsel states that the owners accept that the most appropriate order to be made in these proceedings is for a rectification order. The Tribunal has the power to make such an order pursuant to s48O of the HBA.
2. As regards the ensuite shower floor while there was an agreement between the parties that this item was defective work because the falls were inadequate, there was a disagreement regarding the rectification methodology that should be implemented.
3. As regards the 28 other defective items referred to by Mr Nakhla, a document had been provided to the Tribunal which provided the most up to date account of what was not agreed by Mr Nisbett.
4. The issues which remain in dispute are identified as:

(a) What rectification methodology should be ordered in relation to the shower ensuite floor defect?

(b) Is the builder liable for the defective items of incomplete works and poor workmanship which the parties have not agreed on?

(c) If the builder is liable, what rectification methodology should be ordered?

1. Submissions then followed which addressed how the questions referred to above should be answered.

The orders sought by the owners were:

'Pursuant to s 48MA of the HB Act, the Respondents are ordered to perform rectification works to unit [xxx] in Strata Plan 22/78364 (the Rectification Works); and

The Rectification Works are to be carried out in accordance with the report of Mr Steven Nakhla issued on 9 October 2023; and

Within 7 days of these orders, the Applicants are to nominate 3 appropriate experts to supervise the Rectification Works; and

Within 7 days of receiving the Applicant's nominees, the Respondents are to elect one expert to supervise the Rectification Works; and

Mr Robert Ghalbouni being the Second Respondent, is not to:

(i) personally perform the Rectification Works; and

(ii) attend on site at any time in relation to the Rectification Works; and

(iii) otherwise have any contact with the Applicants other than through legal representatives.

Such further or other orders as the Tribunal thinks fit.'

1. The builder's counsel states that the builder accepts the owners' proposed orders with the following changes.
2. Following the first order sought the builder seeks that the following order should be made:

'The Rectification works are to be carried out in accordance with the report of Mr Craig Nisbett from Tyrrells Building Advisory and dated 8 April 2024'

1. Having regard to the orders sought by the owners and the builder, the first thing to take into account is that although the 'Rectification Works' as referred to in the orders sought be the owners are presented as a defined term, they are in fact not defined.

1. The builder's counsel has submitted that Mr Nakhla's evidence should not be given any weight by the Tribunal because of numerous matters raised by counsel.
2. First, I find that I am not bound by the rules of evidence, section 38(2) of the Civil and Administrative Tribunal Act 2013. Secondly, Court decisions based on the Evidence Act 1995 are persuasive, but not binding authority on the Tribunal.
3. I accept that in order to give weight to an expert's report, there should be reasoning or explanation by the expert as to why he has reached a particular conclusion. What was stated by Heydon JA (as he was then) in in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 is in my view significant.
4. The decision in Makita makes it clear that, for evidence such as that given by the experts in these proceedings to be accepted, the following considerations apply:

(1) the expert's opinion must clearly indicate the facts upon which it is based,

(2) those facts must be proved so there is a factual basis for the opinion,

(3) the reasons or the process of reasoning for the opinion must be disclosed, and

(4) any opinion must fall within the qualifications and experience of the expert.

1. So far as the process of reasoning is concerned, Heydon JA referred with approval to a number of decisions of Anderson J. in the Supreme Court of Western Australia. In Pownall v Conlon Management Pty Ltd [1995] WASC 117; (1995) 12 WAR 370 at 389-90 his Honour Anderson J. stated:

'Expert opinion is to be judged like any other evidence. It must be comprehensible and reach conclusions that are rationally based. The process of inference that leads to the conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them.'

1. I find that it is self-evident that Mr Nakhla's training and expertise which is in the building and construction area has direct application to the area of defective building work which is the subject of his report and evidence in these proceedings. The same may be said for Mr Nisbett.
2. I do not favour giving an expert's evidence no weight at the outset, when considering the contested issues in the proceedings. The experts' opinions are in evidence. I will give such weight to them as is appropriate after a consideration of the reasoning used to support their conclusions.

Rectification methodology for ensuite shower floor

'During my investigations I inspected the ensuite shower of the home and documented my findings.

The homeowner notified me that water ponds after the shower is used and does not drain away.

I observed the tiles around the floor waste had not been transversely cut indicating the tiles had been laid on a relatively flat surface.'

1. I find that Mr Nakhla's report found that the ensuite shower floor had inadequate falls with the result that water ponded and did not drain away adequately. In addition Mr Nakhla found that the ensuite shower floor had not been separated by a water stop angle. At page 535 of exhibit A Mr Nakhla states:

'Note: The ensuite will all require all fittings, floor and wall coverings removed, new waterproof membrane installed, new wall and floor tiles installed throughout and fittings re-installed.

There is no method to repair the shower area only as the waterproof membrane must be monolithic.'

1. Mr Nakhla then set out each step that he proposed to give effect to the rectification methodology/approach referred to in the preceding paragraph. The approach recommended by Mr Nakhla is to remove the shower screen and all tapware and plumbing fixtures from the ensuite and then strip out all floor and wall tiles. He then proposes grinding down the existing membrane and then re-waterproofing the floor, wall upturns and floor wastes, installing a sand/cement screed and then supplying and installing new floor and wall tiles.
2. At page 10 of his report, page 618 of exhibit A, Mr Nisbett prepared in a scott schedule format what he described as his report in reply. He dealt with rectification in the third column. He stated:

'In my opinion the rectification of the shower area floor be rectified in isolation from the main ensuite floor. This can be done by installing a new water stop angle to the shower area when re-waterproofing the floor.'

1. He then set out in detail a method of rectification of the shower area that he proposed which is to remove the existing frameless shower screen (and set it aside for re-installation) and then remove the floor tiles, screeding and waterproofing from the shower area as well as the first row of wall tiles to the adjacent walls of the shower area. He then says that it will be necessary to prepare and install a fibreglass water stop angle up against the existing water stop and to apply a waterproof membrane to the shower area. It is then stated, supply and install a cement screed with falls and supply and install adhesive fixed floor tiles to match the existing ensuite floor tiles, and supply and install adhesive fixed wall tiles to match existing wall tiles. And then to cut the water stop approximately 5-10mm above the existing floor tiles. He then states that a stainless steel receiver channel should be installed over the prepared water stop edge. And finally to install the existing frameless shower screen on top of the receiver channel.
2. I observe that Mr Nakhla's rectification scope of works is far more expansive than Mr Nisbett's. Mr Nakha's rectification scope of work relates to the entire ensuite whereas Mr Nisbett's relates only to the shower area. In that regard I repeat that there was an agreement between the parties that the ensuite shower floor was defective work because the falls were inadequate
3. At [12] of the owner's counsel's submissions Mr Nakhla's evidence at the hearing was referred to. It was submitted that he stated that the fall of the tiles in the shower area could not be rectified in isolation because that would involve disrupting the waterproof membrane of the bathroom as a whole which would be substandard leaving the ensuite more susceptible to leakage.
4. The builder's counsel submits that Mr Nakhla conceded when being cross examined that the rectification of the ensuite shower area was not based on expertise or methodology. An extract from the transcript was not provided to substantiate this submission. I reject the builders submission that such a concession was made in cross examination.
5. I find when being cross examined, Mr Nakhla's evidence in connection with the ensuite was that the builder's expert's rectification methodology was a 'band aid' solution and 'unlikely to last' and would result in a 'lap' in the membrane along the waterstop. Mr Nakhla explained this by stating that a lap allows moisture ingress and was not a certainty. He said that it was poor practice, that it was a risk, a high risk because of constant water in the shower. He also stated that the risk had to be viewed in context of the ensuite being in a strata building and occupants below being at risk of water leaks. Mr Nakhla conceded that his methodology was more expensive. In re-examination Mr Nakhla stated that In his opinion, the builders expert's methodology created a risk that could eventuate in one or two or ten years. He stated that it was poor practice and that a monolithic membrane was the best.
6. Mr Nisbett the builder's expert was also cross examined. The owner's counsel submitted that Mr Nisbett accepted the following propositions when being cross examined:

(a) The waterproof membrane is initially installed in the whole bathroom as one unit; and

(b) Membranes generally work as a liquid membrane which develop into a solid substance; and

(c) His method of rectification will involve installing new waterproofing membrane and creating a join with the waterproofing originally installed; and

(d) The possibility cannot be ruled out that there will be a substandard join; and

(e) There are increased consequences in this circumstance where a leakage could affect other units in the block; and

(f) A monolithic approach to waterproofing bathrooms is always preferred.

1. I should also state that the owners' counsel did not provide an extract from the transcript to substantiate this submission.
2. I agree that Mr Nisbett agreed with (a), (b), (c) and (f). In connection with (d) Mr Nisbett was asked:

'Q :You can't rule out a substandard joint'

A: You can't rule out anything.'

1. I find that Mr Nisbett was not agreeing that there was a possibility of a substandard joint, but he conceded that there was a risk of that.
2. Mr Nisbett stated that there were issues in strata blocks. I regard this as a sensible appreciation of water issues in strata schemes where water from an upstairs lot may affect lower lots.
3. Mr Nisbett's evidence in cross examination which the owners' counsel has not referred to was that there was no evidence of water escaping to other areas, the membrane in the shower area would be re-done, the shower screen would go over the water stop angle. It was put to Mr Nisbett that the new membrane (in the shower area) would have to bond with the old membrane. The response was that the new membrane could be joined when overlapping. Mr Nisbett went on to say that an overlap joint would be on the outside of the shower which he said was a common practice which was 'done all the time.' It was at that point Mr Nisbett was asked:

'Q :You can't rule out a substandard joint'

A: You can't rule out anything.'

1. When it was put to Mr Nisbett that the shower was in a high-risk area, he replied:

1. Mr Nakhla's written report in these proceedings does not support his conclusion with a process of reasoning. Mr Nakhla states:

'There is no method to repair the shower area only as the waterproof membrane must be monolithic.'

1. Mr Nisbett's report provided a conclusion supported with a short reason. He states:

'In my opinion the rectification of the shower area floor be rectified in isolation from the main ensuite floor. This can be done by installing a new water stop angle to the shower area when re-waterproofing the floor.'

1. In my view any deficiencies in the expert's reasoning in their written reports was made up in their evidence given in cross examination.
2. In circumstances where both experts agree that the builder has breached the s18B HBA warranties, which are express terms of the contract and have provided differing rectification options with differing costs of rectification, I find that each expert has done his best to provide a proper rectification scope. I will accept the most comprehensive and risk-free method of rectifying the breach of s18B of the HBA as expressly set out in the contract, given that the owner only has one opportunity to claim a rectification methodology in what is a 'once and for all' remedy. In proceedings relating to a different set of circumstances, Giles J in McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 at [158] stated:

'Where within the proved case there is a range, however, the wrongdoer can hardly complain if the loss is found at the upper end of the range.'

1. I am of the view that such an approach is available in defect cases where there are often differing rectification methodologies provided by the parties' experts, where each expert provides what appears to be a considered and detailed approach to the question of the rectification of the defects.
2. Where there are competing rectification methodologies, the approach referred to in the case of Bellgrove v Eldridge ([1954] HCA 36; 1954) 90 CLR 613 establishes that where there are defects caused by a breach of a contractual obligation, the damages to be awarded are the costs of rectification, provided the works to be carried out are both necessary under the contract, and reasonable.
3. In Tabcorp Holdings Pty Limited v Bowen Investments Pty Limited [2009] HCA 8 (12 February 2009) the High Court of Australia discussed reasonableness as referred to by the High Court in Bellgrove v Eldridge. The Court stated:

'The example which the Court' (in Bellgrove v Eldridge) 'gave of unreasonableness was the following [26]:

"No one would doubt that where pursuant to a building contract calling for the erection of a house with cement rendered external walls of second-hand bricks, the builder has constructed the walls of new bricks of first quality the owner would not be entitled to the cost of demolishing the walls and re-erecting them in second-hand bricks."

That tends to indicate that the test of "unreasonableness" is only to be satisfied by fairly exceptional circumstances.'

An example of such exceptional circumstances was stated to be closely aligned with a party 'merely using a technical breach to secure an uncovenanted profit' as referred to by Oliver J. in Radford v De Froberville [1977] 1 WLR 1262 at 1270

1. Having regard to the reasons provided above, I have concluded that the more expansive rectification methodology proposed by Mr Nakhla is necessary to provide compliance with the contract and also a reasonable approach which provides the most risk-free solution to the owners. I find that the cautious approach recommended by M Nakhla is not an exceptional way of proceeding. I will order the rectification of the ensuite to be carried out in accordance with Mr Nakhla's scope of work.

1. I will deal with the other disputed items of defective work relied upon by the owners as referred to in their counsel's submissions on an item by item basis. Mr Nakhla describes these items at [8.2] of his report as incomplete works and issues of poor workmanship. Mr Nisbett deals with the items individually at appendix A of his report.

1. This is a minor item, namely sealing along the threshold angle at the entrance of the ensuite, on the existing wooden floorboards side of the threshold angle. Mr Nisbett states that this work was not required by the contractual scope of works. I find that the contractual scope of works was expressed in an elementary way. Refer [6] above. I agree with Mr Nisbett that this work was not in the contractual scope. Mr Nakhla has not given evidence that would this work was in scope. I reject this item of the owners' claim.

1. Mr Nakhla's report calls for paint repairs to the:

(a) Chipped paint in the stairwell;

(b) Wall outside the laundry

(c) Door frames and architraves to both bathrooms; and

(d) Stair void wall.

1. Mr Nisbett's evidence is that these items are caused by normal wear and tear, water ingress and building movement.
2. The builder completed the works on 6 July 2022. Mr Nakhla's first inspection occurred on 29 July 2022 with further inspections on 16 November and 21 August 2022. I Find that Mr Nakhla was clearly engaged by the owners soon after the builder completed in the work. Mr Nisbett first inspected the woks at the end of February 2024, approximately 8 months after completion. I find that as a result of his early involvement, the issues that Mr Nakhla has identified are more likely to be minor defects which did not prevent the works from being reasonably fit for their intended purpose as referred to in clause 22(a), rather than conditions that have arisen as a result of fair wear and tear, water ingress or building movement. On that basis I find that the owners are successful in connection with this item of their claim.

1. This defect is described by Mr Nakhla as 'Reinstate skirting behind door' and 'Seal a gap against the threshold angle'.
2. I reject the claim for sealing the gap against the threshold angle for the same reasons as provided in connection with item 1.
3. Mr Nisbett stated at page 627 of exhibit A:

'I observed the missing section of skirting behind the laundry cupboard door and in my opinion this has always been removed so that the cupboard door can open against the wall.'

1. Given that the contractual scope of work is devoid of detail, I prefer Mr Nisbett's evidence. I find that the probability is that the builder was never required to install the small section of skirting referred to.
2. This item of claim is rejected.

1. The issue here is that the dryer cannot be hung due to a low power point. The owners do not address a low power point in their evidence.
2. The laundry scope of work is not addressed in the contract or the evidence. As a result I am not persuaded that there was a requirement for power points to be located in the laundry and if there was, precisely where they were to be located. The scope of work which is annexure B to Ms Tanious statement refers to electrical, but does not mention the laundry.
3. I reject this item of the owners' claim. There is no evidence of the builder's laundry scope of work. In cross examination the builder stated that hanging a drier was never part of its quote, a copy of which is not in evidence despite that it was said to be annexed to Mr Ghalbouni's statement. Because the owners have not established what electrical work the builder was contracted to do in the laundry, I am not persuaded that it breached the contract by anything to do with the location of power points.

'Poorly completed finish against skirting to be cleaned.'

1. Mr Nisbett stated that he inspected the skirting and did not observe a poorly finished area adjacent to the skirting.
2. I am not inclined to make an order in the owners' favour based on the photograph in Mr Nahkla's report.
3. This item is rejected on the basis that Mr Nakhla's brief description of this item calls for cleaning rather than remedial work, suggesting that this item is a maintenance issue,

'Walls, skirting, doors and architraves to be repainting as scratches and texta marks visible.'

1. Mr Nisbett stated that he inspected the relevant areas and didn't observe any obvious damage which would have been caused by the construction work. In his opinion the condition of the existing paintwork as described by Mr Nakhla was due to normal wear and tear.
2. I have had regard to the statements of Mrs Tanious dated 22 February and 29 April 2024 and find that she does not give evidence of the matters that Mr Nakhla has referred to. Neither does Mr Mirabito in his statement. The owners stated that after the work was completed, they contacted the Department of Fair Trading and lodged a complaint. That document has not been provided. Had it been, it would have been clear whether or not this was a matter that was relevant to the owners at the completion of the building works
3. I find that the evidence of the owners does not persuade me that the matters referred to by Mr Nakhla were the result of the builder's actions or lack of care during the carrying out of the works. In the absence of such evidence, I find that it is more probable that the subject matter of this item can fits the view of Mr Nisbett, namely arising due to fair wear and tear.

'Inadequate floor protection installed during construction works

Sand and polished damaged timber floor to affected areas.

This includes the kitchen, living, bedroom, stairs and upper hallway.'

1. There is a Photo Appendix at section 9 of Mr Nakhla's report which is not cross referenced to sections 8.1 or 8.2 of his report which deals with the defect items. In the absence of cross referencing, I will not speculate as to which photograph might relate to this item of claim.
2. Mr Nisbett stated that during his inspection he did:

'observe scratched polished timber floors outside the Ensuite door in the master bedroom'

and that he

'was instructed by the builder at 4.3.1 that the polished timber floors were covered at all times during the works.'

1. Mrs Tanious 22 February 2024 statement does not address damage to timber floors. In his statement Mr Ghalbouni at [15] refers to the complaints about damage to timber floors. He states that he used the ultimate flooring multipurpose rubber mat as a floor protector which is 3mm thick and provides a nonslip surface. He states that he has never seen this material damaged during normal use and had there been any damage to the floor protection during the course of the building work he would have noticed it as he was checking the work in progress and that there was no such damage.
2. In reply on 29 April 2024, Mrs Tanious states that Mr Ghalbouni evidence at [15] is incorrect, and relies photos attached to demonstrate that the timber floors were not adequately covered by the builder and were damaged.
3. The work that the owners contracted the builder to carry out was described as renovation work. I infer from the expert reports that the owners strata lot was not new, and the timber floorboards were not newly installed. I have referred to Mr Nakhla's Photo Appendix which is not cross referenced to this item of the owners' claim with the result that I will not speculate as to which photo of a timber floorboard may relate to this item of claim.
4. So far as the photographs provided by Mrs Tanious are concerned, in X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 an Appeal Panel discussed the use of photographs as evidence in Tribunal proceedings referring to a number of authorities. It is common for photographs to be tendered as evidence in the Tribunal. However care must be used in drawing conclusions or making findings based on photographs. In Blacktown City Council v Hocking [2008] NSWCA 144, Tobias JA, with whom Giles JA agreed, said at [167]:

"[167] The use of photographic evidence has been the subject of discussion in this Court. Its admissibility as a visual reproduction is beyond doubt: R v Travers (1958) 58 SR (NSW) 85 at 108. However, in Short v Barrett, Court of Appeal, 5 October 1990 (unreported), Meagher JA, with the concurrence of Clarke and Handley JJA, observed that in relying on his own interpretation of photographic evidence, the trial judge had overlooked the "sage advice" of Lord Reid in C Van der Lely NV v Bamfords Ltd [1963] RPC 61 at 71. His Lordship said:

'Lawyers are expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for evidence. Where the evidence is contradictory the judge must decide. But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witnesses appears to be most worthy of acceptance.'"

1. Applying the principles stated in the above quotation, I find that I should not attempt to rely on my own interpretation of the photographs which Mrs Tanious has annexed to her reply statement. I am not an expert and am unable to form an opinion based on the photographic evidence particularly when the position appears to be that the floorboards in the owners' lot were not brand new.
2. I accept Mr Ghalbouni evidence that he used a protective material on the floors of the owners unit when he was carrying out the work the subject of the contract between the parties. As a result I do not accept Mr Nakhla's opinion that there was:

'Inadequate floor protection installed during construction works'

(a) there is no evidence of the owners complaining about this issue during the construction of the work or afterwards;

(b) of Mr Ghalbouni's evidence referred to above; and

(c) the owners' and Mr Nakhla's photographic evidence being of little probative value.

1. However because both experts have referred to some areas of scratched timber polished floors, I prefer the evidence of Mr Nisbett who is clear that he observed scratched polished timber floors outside the Ensuite door in the master bedroom.
2. I will include this defect in the work order that is to be made in these proceedings.

1. This item relates to the bathtub base in, I assume, the main bathroom. Mr Nakhla states that the bathtub base is hollow underneath and requires removal, a concrete base installed and the bathtub to be reinstalled. In addition he states that the bathtub drain is also blocked and requires rectification by a plumber to jet the pipes clean. Further matters were reported as being that the toilet was returning flushed debris on full flush and requires rectification by the plumber, potentially debris in a trap to be jetted. It was recommended the plumber to jet all floor waste and toilets, including the ground floor bathroom.
2. Mr Nisbett responded by stating that he has formed the opinion that the bath was not defectively installed and that there was a lack of evidence to arrive at a contrary position.
3. When being cross examined Mr Nakhla stated that not many tubs require a cement base and that a cement base on a freestanding tub is not generally done. He stated that a bathtub should support its own weight. However he stated he got in and found the bathtub to be filmy. As regards the need for the bathroom jet, he stated that his comments were based on his observation of minor blockages which he took to be builders work. Mr. Nakhla did concede that it is possible that the blockages referred to could be pre-existing.
4. The evidence in connection with this item is not particularly compelling. However I find that Mr Nakhla made the effort to investigate the matters he referred to in his report with greater diligence than Mr Nisbett. For that reason I will accept his evidence and include this item in the work orders to be made in the owners' favour.

1. Mr Nakhla states that the mirror door to the upper hallway is severely damaged causing a safety risk. He states that the glass fixed onto the robe frame has detached and the door is not operational. Mr Nisbet in response states that he has been instructed that the builder did not cause the damage complained of.
2. As observed earlier in these reasons, there is no evidence that the owners complained about this matter when the works were being carried out or afterwards. The owners also stated that they contacted the Department of Fair Trading and lodged a complaint. That document has not been provided. Had it been, it would have been clear whether or not this was a matter that was relevant to the owners at the completion of the building works.
3. I reject this item of claim. I am not persuaded that there is any evidence to establish that the builder was responsible for damaging the mirror door to the upper hallway when carrying out the building work.

'1. Pursuant to s 48MA of the HB Act, the Respondents are ordered to perform the following rectification works to unit [xxx], Camperdown NSW 2050 in Strata Plan 22/78364 (the 'Site'); and

2. The rectification of the ensuite bathroom is to be carried out in accordance with pages 17 - 18 in section 8.1 of the report of Mr Steven Nakhla issued on 9 October 2023 (the' Nakhla report'); and

3. The rectification of items 2 - 12, 14, 17, 20, 21, 22, 23, 24, 25, 26 and 27 referred to in section 8.2 of the Nakhla report is to be carried out in accordance with the scopes of work referred to in connection with those items;

4. The rectification of item 19 referred to in section 8.2 of the Nakhla report is to be carried out to the polished timber floor outside the ensuite door in the master bedroom in accordance with the scope of work referred to in connection with that item.

5. Within 7 days of these orders, the Applicants are to nominate 3 appropriate experts to supervise the Rectification Works; and

6. Within 7 days of receiving the Applicant's nominees, the Respondents are to elect one expert to supervise the Rectification Works; and

7. Mr Robert Ghalbouni being the Second Respondent, is not to:

(i) personally perform the Rectification Works; and

(ii) attend on Site at any time in relation to the Rectification Works; and

(iii) otherwise have any contact with the Applicants other than through legal representatives.'

8. The rectification work referred to in the preceding paragraphs must be carried out and completed within 120 days of the date of this order, unless extended by the Tribunal.

Design and Building Practitioners Act 2020

1. The owners have also made a claim under s37(1) of the DBP Act against the first and second respondent at [19] - [36] of their Amended Points of Claim.
2. At [33] of the Amended Points of Claim the owners state that they have suffered economic loss for the purposes of Part 4 of the DBP Act. Damages are claimed in the alternative to a claim for damages pursuant to s48O of the HBA.
3. In their final written submissions the owners do not address their claim under the DBP Act or seek orders under the DBP Act. I infer that since the DBP Act claim was brought in the alternative, ultimately it was not pressed as the owners sought and obtained work orders under the HBA Act. I also find that since the owners have been successful in obtaining work orders, that they have not suffered economic loss as claimed in connection with their DBP Act claim.
4. For the reasons in the preceding paragraphs, I will not make orders in the owners' favour under the DBP Act.

1. In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
2. The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on/give to the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
3. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
4. Subject to the parties' submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.

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.