The Artful Decorator Pty Ltd v Sandlik Constructions Pty Ltd;; Sandlik Constructions Pty Ltd v The Artful Decorator [2025] NSWCATCD 185;

1. The subcontractor's claim can be summarised as a claim in respect of unpaid invoices and additional cost to perform work, which the subcontractor claims is as a result of excessive respirable crystalline silica dust at the property. The subcontractor claims the presence of the dust required areas to be cleaned and repainted. There is also a claim that the builder damaged the subcontractors work other than by dust causing rework in some areas.
2. The builder seeks an order that subcontractor pay the builder the costs of completion of the work rectification of defective work. The builder claims the total cost of rectification and completion was $140,602 and the builder acknowledges this amount must be set off against the subcontract price not yet paid or performed in the contract with the subcontractor, which the builder claims is in the amount of $55,240.

1. The subcontractor relied on a bundle of documents included in the Court Book at tabs 1-4. The respondent relied on the documents in the Court Book at tabs 5-11. These documents were entered into evidence subject to weight and relevance.
2. Documents relevantly included the contract between the parties, and expert reports from
3. At the hearing Kate Cole gave evidence virtually. Mr Boden, director of the subcontractor, Mr Abroon, manager of the builder and Mr Ziino, finishes expert all attended and gave oral evidence. Parties were given the opportunity to ask questions of each witness.

1. This is a dispute arising from a contract to perform internal and external painting work at a dwelling.
2. Section 48K of the HB Act gives the Tribunal jurisdiction to hear and determine any building claim in which the amount claimed does not exceed $500,000 and otherwise complies with that Part of the HB Act.
3. In this case, the Tribunal is satisfied that the works carried out, being both internal and external painting, are residential building works within the definitions set out in clauses 1 and 2(5) of schedule 2 to the HB Act.
4. The Tribunal is further satisfied that the application is a building claim within the meaning of s 48K of the HB Act because it is a claim and cross claim arising from building works including alleged defective and incomplete building services, arising from the warranties within the HB Act which apply to the work.
5. It is common ground that the subcontractor did not perform any work after 24 September 2024. The application was submitted within the two year limitation for defects as set out in s 18E of the HB Act for major defects. The orders sought by each party are for money orders in total amounts below the $500,000 jurisdictional limit for monetary claims.
6. The Tribunal is therefore satisfied that it has jurisdiction under s 48K of the HB Act to hear and determine the application.

18B Warranties as to residential building work

(1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work -

(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.

(2) The statutory warranties implied by this section are not limited to a contract to do residential building work for an owner of land and are also implied in a contract under which a person (the principal contractor) who has contracted to do residential building work contracts with another person (a subcontractor to the principal contractor) for the subcontractor to do the work (or any part of the work) for the principal contractor.

1. Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 ("Deacon") sets out the test for determining whether the statutory warranties have been breached. Deacon states at paragraph 46:

"Although objective standards such as Australian Standards, the Building Code of Australia and the Guide are of significant relevance in establishing whether work has been performed in a proper and workmanlike manner (Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61 at [10]), the absence of such evidence does not automatically mean a homeowner has failed to establish breach of statutory warranty. In our view, the relevant principle was succinctly stated by Senior Member Goldstein in G MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194 at [46] as follows:

'...[E]vidence that work does not comply with the Building Code of Australia would establish a basis for a finding that sub section 18B(c) of the Act has been breached. Evidence of the details in which work does not comply with the contractual plans and specifications would form the basis for a finding that sub section 18B(a) of the Act has been breached. Evidence of work not being carried out in a proper and workmanlike manner would in my view involve identification of the work in question, a statement of how the expert would expect it to be carried out in in a proper and workmanlike manner and then identification of the factors which establish that the way in which the work has been carried out falls short of it being carried out in a proper and workmanlike manner. Evidence of this nature, if accepted, would form the basis for a finding that sub section 18B(a) of the Act has been breached.'"

1. Deacon also states that a Tribunal must consider:

(1) whether the homeowner has established on the balance of probabilities that the works have not been performed in accordance with s 18B of the HB Act; and

(2) then, where a defect is established, what is the appropriate method to rectify that defect and the cost of rectification.

1. Section 48MA of the HB Act also states that the Tribunal must consider an order that the contractor rectify the work is the "preferred outcome".
2. If assessing damages, it is well established that damages should be used to put the party affected by the breach into the position they would have been in if the breach had not occurred: Haines v Bendall [1991] HCA 15.
3. However, Bellgrove v Eldridge [1954] HCA 36 (Bellgrove) determines that the rectification method must be both necessary and reasonable, and the rectification cost must be reasonable.

1. The Tribunal makes the following findings based on consideration of the evidence before it. This decision may not refer to each piece of evidence, but it has considered all evidence when making these findings.
2. It is common ground that the parties entered into an agreement for the subcontractor to perform painting services at a property in Bellevue Hill. An issue in dispute is the terms of the agreement. The Tribunal finds that the contract was formed between the parties by way of the written quotation from the subcontractor dated 12 March 2024 ('the Quote'), and emails between the parties from 12 March 2024 to 9 April 2024.
3. The scope of the contract was set out in the Quote. It is not necessary to reproduce the scope in full. The scope can be summarised as preparation and application of paint and plaster on internal walls, ceiling, woodwork and specific hand painted joinery, painting external surfaces. The quote specified the paint system and number of coats of undercoat and finish coats. The scope of the scope was clarified in emails between the parties which excluded the internal wax plaster application and clarified the cabanas and external shutters were included.
4. The Quote also lists "terms and conditions" including that "I would be able to commence the above scope of work in line with construction schedules and final deadlines" and that "any defective workmanship... within the scope of this quotation will be rectified that the Artful Decorator's expense within 5 years of the project's completion." The Tribunal finds these are terms of the Contract.
5. The further email correspondence documents agreement between the parties, amongst other things, in relation to the schedule. The Tribunal is satisfied based on the exchange of emails it was a term of the Contract that the subcontractor was to complete first floor external surfaces by 6 May, complete ground floor external walls by 17 June and complete internal surfaces by 8 July.
6. The price of the contract was $276,200 including GST. Based on the Quote, which states "I could carry out the work outlined below for a fixed price inclusive of GST, labour and all materials" The Tribunal finds that the contract price was a fixed fee for the agreed scope.
7. The Tribunal is not satisfied that it was a term of the Contract that the subcontractor would be the sole trade on site.
8. The subcontractor commenced work in May 2024. The Tribunal is satisfied that at that time, that there were other trades on site performing works in parallel.
9. The work was not completed in accordance with the dates set out in the Contract. On 19 September 2024, the parties attempted to agree an updated completion date for the first floor and ground floor internal surfaces. The subcontractor stated by email:

"Everything on the first floor will be finished Sunday 22nd.

Everything on the ground floor will be finished on 26th September.

This does not account for ongoing damage and other trades in the way.

26th September is my last working day on this project."

1. The subcontractor's intention to cease work was reiterated in a further email to the builder on 20 September 2024 which stated:

Hi Peter, it is with deep regret and sadness that I am having to cease my work at Trahlee Road. I was given written instructions that the schedule was three months. I quoted accordingly. It's now almost 6 months and we've painted most internal surfaces twice due to the house being filled with concrete dust.

1. The Tribunal is satisfied that by September 2024 neither the interior nor exterior work was completed.
2. The subcontractor claims that excessive dust was on site in breach of the Contract, which prevented it from completing the works in accordance with the agreed Contract due to dust contaminating and damaging the paint, requiring rework.
3. On 24 September 2024 the builder stated by email to the subcontractor "You said you were leaving Thursday, I think it would be best if you pack up today rather than continue with correspondence battles."
4. The subcontractor did not perform any further work at the property.

1. The key issue in these proceedings is whether the builder or the subcontractor lawfully terminated the contract. The builder's claim for the cost to complete the work depends on the circumstances of the termination.
2. If the subcontractor lawfully terminated the contract (or was frustrated) then the builder is not entitled to damages for the increased cost of completing the work that was to be performed by the subcontractor under the Contract. If the builder lawfully terminated the contract, then the builder is entitled to damages to the increased cost of completing the work.
3. In this case, the Contract did not contain provisions for a method of termination. The contract can therefore be terminated under common law by mutual consent or because the other party has repudiated the contract, and the first party accepts the repudiation and terminated the contract.
4. The subcontractor claims that the presence of excessive dust gave rise to a right to terminate the contract. The subcontractor further claims that this dust was respirable silica dust, and it was a hazard to the subcontractor's staff to work on site without appropriate personal protective equipment. The subcontractor states the
5. The subcontractor relies on an expert report of Kate Cole dated 3 February 2025 ("the Cole Report"). The Cole Report states "I am almost certain that silica dust would have been present in the air at the ...worksite." This was based on photographs of dust within the property. There was no sampling of the dust photographed. The photographs on which the conclusion were made are not annexed to the report as lodged in the Tribunal.
6. The Tribunal is satisfied that dust was present at the site. The Tribunal finds there were many sources of dust on site including sanding of timber and gyprock in the interior of the property. The Tribunal is not satisfied on the balance of probabilities that the dust on the site was respirable crystalline silica, as no sampling was undertaken and the underlying photographs to support the Cole Report's conclusion have not been provided.
7. The Cole Report also states at 4.17, based on the behaviour of silica dust in forming very small particles, that "the response of ambient silica dust in the air almost certainly made the worksite unsuitable for painting and finishing. That is because the dust would have almost certainly:

(a) settled on surfaces where paint was to be applied; and

(b) settled on surfaces after paint was applied."

1. The report of Nigel Childs of Paint Consult Australia dated 6 February 2025 ("the Childs Report") states that use of air cleaners and "wet preparation methods to wipe down surfaces where vacuuming is not otherwise practicable" would ensure the surfaces are free from silica dust prior to painting.
2. As stated above, the Tribunal is not satisfied that the dust was silica dust. Whilst the Childs Report is based on the Cole Report's conclusion that the dust was silica dust, the Tribunal is satisfied that the approach to cleaning surface dust would be applicable to other forms of dust.
3. Based on the Childs Report, where Mr Child is a paint expert, whereas Ms Cole is not, the Tribunal is not satisfied that the presence of dust makes the worksite unsuitable for painting and finishing.
4. The Tribunal further finds, based on Mr Boden's evidence, that the dust was present on site from when the subcontractor commenced work. There is no express term in the Contract specifying the maximum level of dust on site. The Tribunal is not satisfied that there is an implied term in the Contract specifying a maximum level of dust. The subcontractor commenced work on site with the dust present, and continued to work on site with the dust present.
5. The Tribunal is therefore not satisfied that the presence of dust prevented the parties from performing the contract, and thus frustrated the Contract.
6. Even if there was a right to terminate on the basis of dust, which the Tribunal is not satisfied of, the subcontractor elected to continue the works in the presence of the dust and affirmed the Contract.
7. The principles regarding repudiation were summarised by the Tribunal's Appeal Panel in DB Homes Australia Pty Ltd v Kes [2019] NSWCATAP 221 at [45]- [46]:

"Repudiation of a contract occurs when a party breaches a fundamental or essential term of the contract; or there was a sufficiently serious breach of a non-essential term of the contract; or a party demonstrates an unwillingness or inability to render substantial performance of the contract and the innocent party elects to accept the repudiation and treat the contract as having ended: Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115

As a general rule, wrongful termination of the performance of a contract, where a party has no legal right to do so, will constitute a repudiation of obligation because such an act indicates an absence of readiness or willingness on the part of the party who has wrongfully terminated to perform its obligations under the contract: Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21; (1976) 136 CLR 444 at 453; Curnow Consulting Pty Ltd v JPD Media and Design Pty Ltd t/as Durie Design [2017] NSWSC 1171 at [344]."

1. The Tribunal finds that the level of dust decreased in 18 September 2024 as a result of increased cleaning by the builder, at the subcontractor's request. The Tribunal is not satisfied that the presence of dust was a breach of the Contract. The Tribunal is therefore not satisfied that the presence of dust was a breach of an essential term of the contract, nor was a sufficiently serious breach of a non-essential term of the contract to amount to repudiatory conduct by the builder.
2. The Tribunal is satisfied that the presence of dust was not a repudiation of the Contract by the builder.
3. The Tribunal finds that the scope of work remaining on 19 September 2024, as demonstrated by the photographs attached to Mr Abroon's statement, could not have been completed by 26 September 2024.
4. The Tribunal finds that the subcontractor, by email to the builder on 19 September 2024 stating it would not perform work beyond 26 September 2024 demonstrated an unwillingness to complete the contract. This was reiterated by the subcontractor's email of 20 September 2024 that stated it was "ceasing work."
5. The Tribunal is satisfied that the subcontractor repudiated the Contract by email on 19 September 2024.
6. The Tribunal finds that the builder elected to accept the repudiation and terminated the Contract by way of email on 24 September 2024, by requesting the subcontractor remove its equipment and leave site.

Is the subcontractor liable for defective work?

1. It is well established that a party is liable for defects in work performed prior to the date of termination (see McDonald v Denny Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457). The subcontractor is therefore liable for defects in the work performed prior to the date of termination, being 19 September 2024.
2. Further, as the Contact was repudiated by the subcontractor, the builder may recover losses it has suffered in completing the scope of work under the Contract.
3. The subcontractor submits that the statutory warranties do not apply where the builder is in breach of the Contract. However the statutory warranties are implied in every contract to do residential building work, as stated in s 18B of the HB Act. The subcontractor may avail themselves of the defences set out in s 18F of the HB Act.
4. The builder claims the cost to complete the work and rectify defects was $140,602 inclusive of GST.
5. The Tribunal accepts the evidence of Mr Ziino and the photographs attached to the statement of Mr Abroon describing the incomplete painting works. The Tribunal also accepts the evidence of Mr Ziino in relation to the defective paintwork that required scraping and reperformance. This is not seriously challenged by the subcontractor.
6. The Tribunal finds that on the top floor:

(1) all window and door surfaces were defective and required scraping and repainting;

(2) the cupboard doors paint was peeling; and

(3) the walls going up to the attic was completed poorly.

1. The Tribunal is satisfied that each of these items is a breach of the warranty in s 18B(1)(a) of the HB Act that the work will be performed with due care and skill.
2. The Tribunal finds that on the first floor, the following items are incomplete work:

(1) attic, requiring two additional coats;

(2) rear staircase walls, where only one coat applied;

(3) timber balustrade not commenced; and

(4) back bathroom windows not commenced.

1. The Tribunal finds in relation to the ground floor:

(1) the lounge room windows and doors were peeling;

(2) all windows and doors were poorly finished; and

(3) the fireplace mantel was damaged

1. The Tribunal is satisfied that each of these items is a breach of the warranty in s 18B(1)(a) of the HB Act that the work will be performed with due care and skill.
2. The Tribunal finds that in relation to the ground floor, the following items are incomplete work:

(1) lounge room walls, where only one coat of paint was applied;

(2) bookshelves, where only primer was applied;

(3) fireplace mantel between the wall and fireplace;

(4) small bathroom, ceiling incomplete and walls not commenced;

(5) kitchen walls, windows and butler's kitchen cupboards;

(6) kitchen cupboards, where only undercoat applied;

(7) laundry not commenced; and

(8) Internal lift walls unfinished.

1. The Tribunal finds in relation to the basement, that the ceiling was damaged, in breach of the warranty in s 18B(1)(a) that the work will be performed with due care and skill.
2. All other basement items were incomplete.
3. In relation to the exterior, the Tribunal finds the following work was incomplete:

(1) all walls except the top floor front façade and right side wall adjacent the alley way;

(2) all ceilings;

(3) shutters;

(4) pool cabana; and

(5) metal balustrades and gates.

1. The subcontractor claims the works are not defective on the basis that the dust on site prevented work being performed in accordance with the Contract.
2. Section 18F of the HB Act sets out the defences to a breach of the statutory warranties set out in s 18B. Section 18F relevantly states:

18F Defences

(1) In proceedings for a breach of a statutory warranty, it is a defence for the defendant to prove that the deficiencies of which the plaintiff complains arise from--

(a) instructions given by the person for whom the work was contracted to be done contrary to the advice of the defendant or person who did the work, being advice given in writing before the work was done, or

(b) reasonable reliance by the defendant on instructions given by a person who is a relevant professional acting for the person for whom the work was contracted to be done and who is independent of the defendant, being instructions given in writing before the work was done or confirmed in writing after the work was done.

1. Mr Boden, the subcontractor's director informed the builder by email on 23 August 2024 that:

I also need professional cleaning please.

I am a professional and cannot achieve quality in this working environment, its really unfair, costs me more time and money and is totally unnecessary...

1. On 26 August 2024, Mr Boden sent a further email to the builder that stated:

I'm confident that if my concerns can be addressed this week then I am on track to delivery according to schedule which I'm led to believe is end of September.

1. The subcontractor continued to work on site after this email was sent.
2. Mr Boden sent a further email on 2 September that stated "could you please confirm when a site clean internally is expected to be completed? I'm hoping Thursday and Friday this week upstairs can be cleaned and ready for final coats."
3. The Tribunal finds that the email of 23 August 2024 amounts to advice in writing that the paintwork would not meet the statutory warranties as a result of the presence of dust.
4. Whilst the builder's representative stated in an email to the subcontractor on 17 September 2023 that the builders "are completely guilty of the dust mess", the Tribunal does not consider this amounts to an instruction to continue to work, nor, in consideration of all the evidence before the Tribunal, does this establish that the builder concedes it was in breach of Contract.
5. The Tribunal is not satisfied on the evidence before it that the builder instructed to the subcontractor to continue to perform the work. The parties agreed that a site clean was required, and the Tribunal finds based on the email of 2 September 2024 that the subcontractor gave advice that after a site clean occurred, the work could continue.
6. The Tribunal is also satisfied that there was dust present on site from the commencement of the works by the subcontractor. The Tribunal finds that despite the presence of dust, the subcontractor elected to perform the works up until 23 August 2024 when it raised the issue in writing with the builder. The Tribunal finds that the subcontractor continued to perform works after raising the issue.
7. The Tribunal is not satisfied that the subcontractor has established that the defences in s 18F of the HB Act are applicable, as the written notice was provided after most work was performed, and there was no instruction by the builder after the advice to continue to perform the work without actions to rectify the issue. Therefore the breaches of the warranties in s 18B of the HB Act remain, and the subcontractor is liable for the rectification of works in breach of these warranties.

1. The Tribunal accepts the evidence that the builder engaged Primarch Finishes Pty Ltd to perform the defect rectification and complete the works.
2. The Tribunal is satisfied that the work that Primarch Finishes Pty Ltd was engaged to perform was limited to the work to complete and rectify the scope of work under the Contract. The Tribunal is satisfied that the amount paid by the builder to Primarch Finishes Pty Ltd was $140,604 including GST.
3. The builder has an obligation to mitigate its losses. The Tribunal is satisfied that Primarch Finishes Pty Ltd was engaged on 28 September 2024. The Tribunal is satisfied based on the emails between the builder and the subcontractor that the homeowner sought occupation of the property by 26 September 2024. The Tribunal is satisfied that promptly engaging an alternative subcontractor to complete and rectify the works amounted to mitigation of losses which would arise under the head contract.
4. The quantum of loss will be the amount the builder paid for the work to be completed and rectified, less any amounts it has not paid that are owing to the subcontractor.

1. The subcontractor claims $55,240 in respect of work completed and a further $11,750 in respect of variations.
2. The Tribunal is satisfied that the builder has made payments in the amount of $220,960 to the subcontractor. The Contract price was $276,200. The subcontractor is claiming the balance between the amount paid and the total agreed contract price.
3. The subcontractor issued invoice 0420 on 30 August 2024 in respect of $55,240.00. The single line description is "internal and external painting progress payment #5".
4. The payment terms in the Contract state "20% deposit upon acceptance of this quotation with 20% progress payments due at the end of each working month with the balance due on completion and sign of [sic]." This was amended by emails between the parties on 9 April 2024 to be "30 days end of month payment terms".
5. The Tribunal is satisfied that invoice 0420 is a progress payment in respect of work performed prior to the termination of the agreement, validly issued in accordance with the end of month payment terms of the Contract. The Tribunal is satisfied that this is an amount due and payable to the subcontractor.

1. The subcontractor claims $11,750 in respect of unpaid variations. These are comprised of:

(1) Invoice 0428 dated 3 October 2024 in the amount of $10,550 in respect of library and living wall painting, shutters and ceiling repainting; and

(2) Invoice 0426 dated 3 October 2024 in the amount of $1200 in respect of rendered wall repainting.

1. The builder denies these are agreed variations.
2. The subcontractor claims these variations were approved by email on 12 September 2024. The email from the builder to Mr Boden at 11.36am on 12 September 2024 states:

Re undercoating front lower render due to new render for textural change $1200... understood and approved.

1. The Tribunal finds that the parties agreed the amount of $1200 as an agreed variation in respect of rendered wall repainting. The Tribunal finds this is an amount validly owing to the subcontractor.
2. The email from the builder also states:

I am not expecting you to absorb all these charges, I am just trying to have everything documented and understand the breakdown of all these items so it can be assessed.

....

Living and library prep and paint walls over stucco - $7,250 - clarify this item please.

All ceilings additional coat due too dust $2500

....

Does this mean you have done an extra coat on all GF and FF ceilings?

1. The Tribunal finds these paragraphs in the email relate to the items in Invoice 0428. This email explicitly requires further action on the items that relate to Invoice 0428. The Tribunal finds that builder states "approved" on the item relating to invoice 0426 by email on 12 September 2024 at 11.36am. The Tribunal is satisfied that this was an agreed variation.
2. The Tribunal further finds in relation to Living and library prep and paint walls over stucco, this item was approved by email to 16 September 2024 at 17.21pm and is an agreed variation.
3. However, the Tribunal finds that the lack of express agreement to "all ceilings additional coat due too dust $2500" supports the builder's position that this was not an agreed item. There further is insufficient evidence to support a claim in quantum meruit that the work has been performed by the subcontractor. As the Contract was a fixed price agreement, the Tribunal dismisses the claim for all ceilings additional coat of paint.

1. The subcontractor claims $118,008 for breach of contract damages. The subcontractor claims the builder breached the Contract by unilaterally varying the schedule, which resulted in $82,860 in lost profits. The subcontractor claims $35,148 in extra work, being remedial work and daily cleaning of dust.
2. The Contract places an obligation on the subcontractor to complete the scope by 8 July 2024. The work was not completed by this time, and the builder set out a timeframe for the work to be completed by the subcontractor. This is an obligation on the subcontractor to
3. It is common ground that the subcontractor's works were not completed by the date of repudiation on 19 September 2024.
4. The Tribunal is satisfied that the date for completion was extended by agreement between the parties as documented in the emails of 8 July 2024 and 9 July 2024, extending the final completion date to 3 September 2024, and 10 September 2024, extending the time for final completion until 26 September for the interior. The Tribunal finds based on emails between the parties and Mr Boden's evidence thar the subcontractor was on site, but not working consistently, from the period May 2024 when work commenced, until the Contract was repudiated on 19 September 2024.
5. The Tribunal is not satisfied on the evidence before it that extensions of time for the subcontractor to perform works were a unilateral variation to the agreed schedule as set out in the Contract. Further, the subcontractor has provided no evidence to support its claim of loss. The Tribunal therefore dismisses the claim based on a unilateral extension of the schedule.
6. The subcontractor also claims $35,148 in extra work, in relation to additional work, re-work where items were damaged by other trades, dust or additional cleaning work to remove dust.
7. The subcontractor relies on the unsigned witness statements of Mr Lefebre and Mr Kemp, employees of the subcontractor, in relation to the additional work required. In relation to the quantum of loss, the subcontractor includes calculation in submissions but no timesheets or other evidence to substantiate the extra work and material is claims was required for rework and dust cleaning.
8. The Contract states that:

"- All ceilings and walls to be sanded prior to the application of paint and in between each coat for paint for maximum adhesion and quality of finish.

- All woodwork to be hand or mechanically sanded/abraded prior to painting and in between coats of paint...

- Tack cloth to be used to remove all dust and lint before and between each coat of paint"

1. The Tribunal is satisfied that it was a term of the Contract that the subcontractor was to remove dust prior to painting each coat. There was no term in the Contract that limited the amount of dust cleaning that was in the scope of the Contract. The Tribunal is not satisfied on the evidence before it that cleaning the dust amounts to extra work under the Contract.
2. In relation to rework in respect of damage, the Tribunal is satisfied that there was damage to the completed work surrounding a downpipe on the external wall. The Tribunal is satisfied that this required re-work outside the scope of the Contract, and that the subcontractor performed this re-work. The Tribunal finds, based on the best assessment of the evidence before it, that the fair cost for this work under the principles of quantum meruit was $528, being six hours work.
3. The subcontractor claims for rework caused by other damage caused by trades. The Tribunal is satisfied that in some locations, the skirting boards were completed, and then had in certain locations, scuff marks, venetian plaster and floorboard gloss applied to them by other trades. The isolated photographs and evidence before the Tribunal do not establish the extent of the damage. The subcontractor's evidence includes a request to the builder that the other trades rectify skirting board damage. The Tribunal is not satisfied on the evidence before it that the subcontractor rectified the skirting board damage. Further, on review of the Primarch Finishes Pty Ltd invoices and photographs of the work after the Contract was terminated, the Tribunal is not satisfied that the builder is claiming an amount in respect of rectifying the damage to the skirting boards. Therefore, where the subcontractor has not reperformed the skirting board work and the builder is not claiming an amount to reperform the work, the Tribunal dismisses the subcontractor's claim.
4. The Tribunal is also not satisfied on the evidence before it that other subcontractor work was damaged. The Tribunal therefore dismisses this claim.
5. The Tribunal is not satisfied on the evidence before it that the other claimed items of work outside the scope of the Contract including furniture removals, curtain and blind removals was performed by the subcontractor. The Tribunal dismisses these claims.
6. The subcontractor claims additional top coats and undercoats were required, constituting rework. The Tribunal is not satisfied on the evidence before it that additional coats of paint above the amount specified in the Contract were performed. The Tribunal dismisses this claim.
7. The subcontractor claims the builder breached the Contract through the presence of excessive dust on the site. The Tribunal finds there was no express term of the Contract requiring a particular level of dust. The Tribunal is not satisfied that the level of dust was so excessive to be in breach of an implied term. The subcontractor continued to work on site in the presence of dust. The Tribunal dismisses this claim.

Did the builder breach the contract by failing to provide a safe workplace

1. As set out above, the Tribunal is not satisfied that the dust present at the site was respirable silica dust. The Tribunal is not satisfied that the workplace was otherwise an unsafe workplace. The Tribunal dismisses this claim.

1. The Tribunal is satisfied that the cost incurred by the builder to complete and rectify the works is $140,604.
2. The amount payable to the subcontractor is $55,240 in respect of the unpaid progress payment, $1200 in respect of render, $7,250 in respect of library and living area variation and $528 in respect of damaged render rework. The total amount payable to the subcontractor is $64,218.
3. The Tribunal therefore finds the total amount payable to the builder, less the amount payable to the subcontractor is $140,604 less $64,218, resulting in $76,386 payable to the builder.

1. Both parties seek an order for costs. The Tribunal shall make directions for an application in respect of costs.

(1) The Artful Decorator Pty Ltd is to pay Sandlik Constructions Pty Ltd the sum of $76,386 within 14 days of the date of these orders.

(2) If either party seeks an order as to costs, they are to lodge their application with submissions within 7 days of the date of these Orders

(3) Any submissions in opposition to an application for costs is to be lodged with the Tribunal and sent to the other party within 14 days of the date of these Orders.

(4) The Tribunal proposes to determine the issue of costs on the papers without a hearing under s 50(3) of the Civil and Administrative Tribunal Act 2013. Parties must include in their submissions whether they consent to this course or if they do not consent, why.

(5) Any submissions on costs must be no longer than three pages.

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.