Vadasz v Charas Constructions Pty Ltd

PROCEDURAL HISTORY

1. The procedural history of the proceedings is apparent on the face of the Tribunal's file.
2. The Tribunal listed the Application for directions before the Tribunal on 24 July 2018. Both parties were not legally represented. The Tribunal listed the matter for hearing on a date to be fixed by the Registrar and made directions to ensure the matter was ready to proceed on the allocated hearing date. The Tribunal's directions included: 1. an order permitting the Builder access to the Residence; 2. an order that by 31 July 2018the Owner serve a copy of all documents, including expert reports and witness statements on which the Owner proposed to rely at the hearing; and 3. an order that by 7 August 2018the Builder serve all documents, including expert reports in response.
3. The Owner served the Builder with a paginated, 54-page bundle of documents in support of the claim (the Owner's Bundle) in compliance with the Tribunal's orders. The Builder served nothing in response.
4. The matter was set down for hearing initially on 8 October 2018. This date changed 16 October 2018 because the Owner was away overseas.

THE HEARING

1. When the Tribunal called the matter on for hearing on 16 October 2018, Ms Vadasz appeared in person. The Builder was represented by Mr V Panicker, a partner of Blackstone Waterhouse. Reference to the Tribunal's file indicates that Mr Panicker had been acting for the Builder from at least 17 August 2018.
2. The Owner was ready to proceed. Mr Panicker indicated that the Builder wanted to rely on documents that the Builder had not previously served. These included: 1. email correspondence; and 2. an expert report of Mr Mardios Tatian (the Tatian Report).
3. After hearing from Mr Panicker and the Owner, the Tribunal was of the view that the Builder should not be granted leave to rely on these documents because of the considerable prejudice to the Owner.
4. Mr Panicker relied on an affidavit that he had affirmed that morning in which he gave evidence of a conversation with the Owner the afternoon the day before the hearing. In the course of that discussion, Mr Panicker asked the Owner to confirm what expert evidence the Owner relied on, and that the Builder required the required all experts on which the Owner was relying to be available for cross-examination. The tenor of the conversation inferred that the Builder expected the Owner to arrange that.
5. Any assessment of the Owner's Bundle would have made it obvious to the Builder that the Owner proposed to tender Mr Tuckwell's two reports. The Tribunal was left wondering why Mr Panicker needed to 'confirm' what expert evidence the Owner intended to use at the hearing, when so much would have been obvious from the material that the Owner had served, as the Tribunal had directed. The Tribunal raised with Mr Panicker that: 1. the Builder's attempt to have the Owner procure Mr Tuckwell's attendance was misconceived, because the HB Act made clear that Mr Tuckwell could only give evidence if the Tribunal itself called him as a witness: s 48N (2) of the HB Act; and 2. the Owner was entitled to rely on Mr Tuckwell's reports, without his attendance: s 48N (1) of the HB Act.
6. When Mr Panicker outlined the Builder's, he submitted Mr Tuckwell's report were not geared to providing any defined scope of rectification work. He said that the Builder wanted to also show that some of Mr Tuckwell's assumptions on which he formed his opinions were not well founded. The Tribunal suggested to Mr Panicker that, if the Builder had any problem in presenting its case, that problem was of Builder's own making. Firstly, it had failed to comply with the Tribunal's directions, and was seeking to rely on expert evidence provided too late. Secondly, the Builder had mistakenly assumed that Mr Tuckwell would not have regard to the Tuckwell reports without Mr Tuckwell's attendance. Mr Panicker submitted that if Tribunal were minded to allow the Owner to rely on the Tuckwell reports, the Tribunal should call Mr Tuckwell as a witness in the interests' of justice.
7. At the end of the day, reluctantly, the Tribunal agreed to adjourn the hearing and to arrange for Mr Tuckwell's to give evidence. The Tribunal considered was this was the course it should adopt because the overall interests of justice, outweighed other considerations. The Tribunal adjourned the hearing to 2 November 2018, on terms that required the Builder not to supplement its evidence, other than by way of cross-examination of Mr Tuckwell. The Tribunal also directed that the Builder serve all documentary material it intended to use in cross-examination on the Owner in advance of the resumed hearing.
8. On 29 October 2018, the Builder served the following documents on the Owner in compliance with the Tribunal's direction: 1. an unsigned copy of the contract for the sale of the Residence to the Owner; 2. an invoice from NFX Metal Roofing for the supply and installation of a Perspex lining to the Residence's carport dated 24 April 2017 (the NFX Invoice); 3. photographs of the Residence's carport; and 4. email communications relating to the repair of the electric motor of the Residence's front gates.
9. The Owner relied on the following documents that the Owner had previously served on the Builder (the Owner's Bundle) and addressed those documents at the adjourned hearing: 1. the terms of the First Rectification Order (p 2 of the Owner's Bundle); 2. the evidence in the First Tuckwell Report (pp 6-15 of the Owner's Bundle); 3. the evidence in the Second Tuckwell Report (pp 18 - 40 of the Owner's Bundle); 4. the evidence as to the Residence's lighting and electrical installation in an electrical inspection report by Mr John Habak dated 19 March 2018 (pp 41-42 of the Owner's Bundle); 5. a quotation from the Scott Building Group as evidence for what the Owner would contend as the reasonable cost of having to repair the carport awning by re-construction of the entire carport in the amount of $12,743.50 inclusive of GST (the Scott Quotation) (p 43 of the Owner's Bundle); and 6. photographs of the Residence which showed: 1. the front of the Residence (p 44 of the Owner's Bundle); 2. defective areas of paint and plaster works (pp 45- 47 of the Owner's Bundle); and 3. the Residence's stained floor boards (pp 48 - 50 of the Owner's Bundle).
10. The Tribunal called Mr Tuckwell to give evidence on the adjourned hearing date under s 48N(2) of the HB Act. Mr Tuckwell was cross-examined by Mr Panicker on his two reports.
11. At the conclusion of the hearing, the Tribunal reserved its decision.
12. This is the Tribunal's determination of the proceedings.

JURISDICTION

1. The claims made by the Owner are for breach of the statutory warranties in section 18B of the HB Act (the Warranties). S 18B of the HB Act provides: 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, and (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. Section 28 of the Civil and Administrative Tribunal Act 2013 gives the Tribunal jurisdiction that the Act, or any legislation that confers jurisdiction on the Tribunal. The Tribunal has jurisdiction to determine a 'building claim' as set out in section 48K of HB Act, where the amount claimed does not exceed $500,000. 48A of the HB Act defines a 'building claim' as a claim for: The payment of a specified sum of money, or (b) The supply of specified services, or (c) Relief from payment of a specified sum of money, or (d) The delivery, return or replacement of specified goods or goods of a specified description, or (e) A combination of 2 or more of the remedies referred to in paragraphs (a-d) that arises from a supply of building goods or services whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods and services, but not include a claim that the regulations not to be a building claim.
3. Section 48I (1) of the HB Act provides that any person may apply to the Tribunal for the determination of a building claim.
4. The Builder did not dispute that: 1. the construction of the Residence was 'residential building work', and the Tribunal is satisfied that it is; 2. the vendors for whom the Builder constructed the Residence were entitled to enforce the Warranties against the Builder, and the Tribunal makes that finding; and 3. the Owner, as those vendors' immediate successor-in-title, had the benefit of the Warranties by operation of s 18D of the HB Act, and the Tribunal also makes that finding.
5. It is common ground that the Builder completed the construction of the Residence for the vendors in either late 2016 or early 2017. As at the date of the Contract, s18E (1) (a)-(d) of the HB Act provided for a statutory warranty period of 6 years for major defects, and 2 years for other defects. The Owner commenced proceedings against the Builder by filing the Application with the Tribunal within that time.
6. The Owner's claim is within the Tribunal's $500,000 statutory limit in s 48K(1) of the HB Act.
7. For these reasons, the Tribunal finds that it has jurisdiction to determine the Application and the Owner's claims against the Builder.

THE CARPORT CLAIM

1. The First Tuckwell Report describes the carport roof as a 'twin wall' style, flat profile material. The NFX Quotation is consistent with the Builder having used polycarbonate sheeting in the carport's construction.
2. The Owner's description of the carport refers to the carport as 'rusting'. Photograph 8 in the First Tuckwell report shows some rust (p 11 of the Owner's Bundle). According to the First Tuckwell Report (pp 4- 10 of the Owner's Bundle), the Builder did not install the carport roofing as per the manufacturer's detail, and therefore, Mr Tuckwell considered that the Builder had breached the Warranties by not installing the roofing 'in accordance with specifications'. Mr Tuckwell did not give evidence that any other element of the carport was defective. He did not refer to the carport structure as requiring replacement. Item 3 of the First Rectification Order did not refer to any rust on the carport. It referred to the presence of mould and water inside the roof sheeting cell structure.
3. Although the Tribunal had some doubt as to whether Mr Tuckwell correctly identified the actual manufacturer of the roof sheeting in the First Tuckwell Report, and doubt as to whether Mr Tuckwell's reference to the manufacturer's specifications was totally accurate, the thrust of Mr Tuckwell's opinion was not based on any particular specification but rather on the basis that: 1. the installed roof sheeting was not installed with sufficient minimum falls, and was bowed (p 4 of the First Tuckwell Report); and 2. the sheeting had been incorrectly fastened to the structural members through the face of the sheet, rather than the joins hidden within the join itself 3. and this caused moisture to get through the roof to the structure below (p 13 of the Owner's Bundle).
4. The Tribunal accepts that evidence. The Builder did not install the carport roof sheeting with due care and skill, and accordingly breached the Warranty in s 18B(1)(a) of the HB Act.
5. The Owner relied on the Scott Quotation as evidence of the reasonable rectification costs for the defect in the installation of the carport's roof sheeting. This assumed that the carport had to be completely replaced. On the basis of Mr Tuckwell's evidence, the Tribunal is satisfied that the poor installation of the roof sheeting by the Builder caused water to make its way through the carport sheeting and caused the rust shown in Mr Tuckwell's photographs. The Tribunal is not satisfied that the rust is more than surface rust, or that the rust has compromised the carport's structure to the extent that it cannot be cleaned and treated with rust inhibitor and the structure restored to a unified finish. There was no expert evidence that satisfies the Tribunal that such a finding is justified. The Scott Quotation assumes that the polycarbonate sheeting and structure must be replaced with toughened glass beams and toughened glazed panels.
6. There is no evidence which proves that assumption. The Scott Quotation is also based on having to replace the carport supporting structure with a pre-primed pine timber structure. The Tribunal does not accept that the evidence justifies that finding either. The Tribunal does not accept that the Scott Quotation represents the appropriate and reasonable scope of the rectification work required to fix the defect in the installation of the carport sheeting.
7. Accordingly, the evidence does not support the owner's claim for damages which the Owner sought to establish by relying on the Scott Quotation. The Owner submits that the Tribunal should make a work order to require the Builder to rectify the carport defects instead.

THE LIGHTING CLAIM

1. Mr Habak's short report which was included at pp 41-42 of the Owner's Bundle refers to the following electrical defects: 1. the Residence's pool lights were left incomplete, and no transformer had been installed within the equipment box; 2. the Builder did not install a ventilation fan in the upstairs' ensuite; 3. the external sensor lights were not operating correctly, with one of the fittings full of water; and 4. the recessed lighting in the hallways were not perfectly aligned.
2. The unexplained failure by a party to give evidence or to call a witness or tender certain documents may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party's case: Jones v Dunkel (1959) 101 CLR 298, 308, 312 and 320 - 321. The failure to call a witness or tender documents can allow evidence that might have been contradicted by such witness or document to be more readily accepted. Further, where an inference is open from facts proved, the absence of the witness or document may be taken into account as a circumstance in favour of the drawing of the inference: Jones v Dunkel 308, 312 and 320 - 321.
3. The principle can operate against a party who bears the burden of proof or against a party who does not bear the onus: Ho v Powell (2001) 51 NSWLR 572 [16].
4. The Habak report establishes that Mr Habak is an accredited and licenced master electrician. On that basis, Mr Habak is well qualified to express a view as to whether the Builder's electrical works were installed with required level of due care and skill. In the absence of any evidence to the contrary, the reasonable inference is the work that Mr Habak identified as defective was the Builder's work, and the Tribunal accepts Mr Habak's evidence.
5. The Tribunal considers the Habak Report does establish that the Builder did not install the items of electrical works to which it refers with the requisite degree of care and skill, and that therefore, the Builder breached the Warranties.
6. Item 4 in the Second Tuckwell Report, included at p 24 of the Owner's Bundle, concerns the installation of the downlights to the Residence's master bedroom. According to Mr Tuckwell, the ceiling has observable has tool marks and cut outs which Mr Tuckwell maintains as defects in the Builder's work in installing the lights in question. Mr Tuckwell's opinion is: Common building practice is to ensure that when installing light fixtures such as these, the correct sized hole and/or recess has been cut so that the face of the fixture covers the cut out edge. If the edge and any tool marks are visible, the area is patched and painted so that it blends in with the surrounding area. The work as it has been carried out detracts from the overall appearance of the contracted works.
7. The Builder did not call any evidence, or did it tender any document to contradict Mr Tuckwell's opinion that this was the Builder's work. The knowledge of what the Builder actually did was a matter that was totally within the Builder's knowledge, and the reasonable expectation is that the Builder would have relied on evidence to contradict Mr Tuckwell, if this was not the Builder's work. The Jones v Dunkel inference works here. The inference is that the Builder had no evidence which would have assisted the Builder.
8. On the basis of all of the material, the Tribunal is satisfied that the Builder did not comply with the Warranties by: 1. Installing the pool lights, without any connection to a transformer to make them operational; 2. by the installation of external sensor lights without the required protection to prevent water affecting the operation of the sensor light fittings; 3. not installing a ventilation fan to mechanically ventilate the Residence's upstairs ensuite; 4. by the misaligned installation of the recessed lighting in the hallways of the Residence; and 5. by not installing the downlights to the master bedroom with due care and skill but rather leaving tool marks and cut outs in the surrounding area.
9. The Owner has not established the reasonable cost of rectifying these items. There is no evidence on that issue. Accordingly, the Tribunal is not in a position where it can make a compensation order to compensate the Owner for the cost of rectifying this defect. The Owner submits that the Tribunal should make a work order to require the Builder to attend to the rectification of these items of defective lighting.

THE FIRE ALARM CLAIM

1. Item 6 in the First Tuckwell Report establishes that the Builder did not complete the installation of one of the two smoke detectors that the Builder obviously intended to install. This is evident to the Tribunal by the fact that the Builder attached a support base for the smoke alarm (as shown in photograph 11 on p a14 of the Owner's Bundle), and the absence of any evidence from the Builder suggesting that the Builder did install it. The reasonable inference is that what Mr Tuckwell describes in item 6 of the First Tuckwell Report is the Builder's incomplete work.
2. The first Tuckwell Report states that when Mr Tuckwell spoke to the Builder, the Builder told Mr Tuckwell that the Builder understood that the smoke alarm had been installed. The reasonable inference is that the Builder considered that the installation of the smoke alarm was part of its scope of works, and presumably required for the life safety or functional requirements of the Residence.
3. For these reasons, the Tribunal is satisfied that the Owner has established that the Builder breached the Warranties in failing to complete the installation of the smoke alarm, as the First Tuckwell Report states.
4. The Owner has not established the reasonable cost of rectifying this item. The Owner did not provide the Tribunal with any evidence on that issue. As in the case of the Carport Claim and the Lighting Claim, the Owner however submits that the Tribunal should make a work order to require the Builder to complete the installation of the partly completed smoke detector.

THE ELECTRIC MOTOR CLAIM

1. During Mr Tuckwell's inspection of the Residence on 7 December 2017, Mr Tuckwell found the Residence's motor was inoperable. The gist of Mr Tuckwell's opinion (which is page 35 of the Owner's Bundle), is that the electric motor installed was not fit for purpose having broken down within 12 months. Mr Tuckwell's report provides no information as to the precise problem.
2. The Builder relies on an email from the Owner to Rania Said, the Administration Manager of Str8 Up Fencing, dated 16 July 2018, and the associated email chain response to the Owner saying: Since sending your motor back to the manufacturer for an evaluation. The conclusion is that the reason stopped working is due to water damage. When we installed the motor, it was in perfect working order (confirmed by self-testing). Between this time and the time an electrician has come out to connect power to the motor the protective casing of the motor has been broken which has allowed water to seep inside and cause damage.
3. According to that part of the Second Tuckwell Report at p 19 of the Owner's Bundle, the Builder denied liability on the basis that the Owner had been in occupation of the Residence for over 12 months, and the Builder did not believe the problem was its responsibility. If the Builder did not supply and install the electric motor, it is logical that it would have said that to Mr Tuckwell when providing its comments as to why it had not complied with the Second Tuckwell Report. The Builder did not call evidence to establish what the state of the Electric Motor was at the time it completed the work. In those circumstances, the Tribunal considers that the reasonable inference is that the evidence of the state of the works when it left the site would not have assisted the Builder.
4. The Tribunal is of the view that the Builder tell not Mr Tuckwell that it did not supply and install the Electric Motor because it did. The Tribunal finds that the electric motor worked for a period but stopped working because the installation of the wiring was deficient in that it compromised the external part of the motor and allowed water to get inside. A replacement electric motor is now required.
5. The Builder breached the Warranties by failing to install the electrical installation to the front fence, to activate the electric motor, with due care and skill.
6. There is no evidence that establishes the reasonable cost of the replacement electric motor. The Owner submits the Tribunal should make a work order to require the Builder to replace the electric motor with one of an equivalent type and standard.

THE PATHWAY CLAIM

1. Item 9 of the Second Tuckwell Report establishes that at the time that Mr Tuckwell inspected the Residence on 7 December 2017: 1. an area of the landscaping along the pathway at the side of the Residence had subsided, with result that the paving stones had become a trip hazard; and 2. timber placed across the pathway at intervals was been poorly installed and had failed as described in the Second Tuckwell Report (pp 32 - 33 of the Owner's Bundle).
2. The Tribunal accepts Mr Tuckwell's opinion, provided by way of the two diagrams (p 33 of the Owner's Bundle) as to the deficiencies in the Builder's work, and that the Builder failed to landscape the path with due care and skill. The Builder's comments to Mr Tuckwell, do no more than indicate that the Builder considered it had no responsibility because the Owner had lived in the Residence for more than 12 months. It did not say that the Builder had not carried out the work as Mr Tuckwell describes in the Second Tuckwell Report. The Builder gave no evidence to suggest that what Mr Tuckwell saw was not built by the Builder, when that was particularly within the Builder's knowledge. The inference is that any document or evidence would not have assisted the Builder. This is because it did that work.
3. The Tribunal accepts Mr Tuckwell's opinion. It finds that the Builder's work along the path was not carried out with due care and skill, and that good building practice required the Builder to carry out the work to the arrangement described in Diagram 2 on of the Tuckwell Second Report which was included in the Owner's Bundle (p 33 of the Owner's Bundle). The Tribunal is satisfied that the Builder breached the Warranties.
4. As in the case of other items of defective work, the Owner has not established what the reasonable cost of rectifying this item of defective work is. The Owner submits that the Tribunal should make a work order to require the Builder to attend to the rectification of this item.

THE STAIRCASE CLAIM

1. The alleged items of defective work in the Residence's stairway are described in the narrative for item 2 and item 3 in the Second Tuckwell Report. Mr Tuckwell states there that when inspected the Residence on 7 December 2017, he saw that the Residence's stairwell light was not working. The Report does not state the exact problem. Mr Tuckwell seems to have formed the view that the Builder breached the Warranty because it did not check the circuits and connections to the lights, suggesting that the light was not working because something was wrong with the circuits or connections, without indicating which.
2. In the absence of any explanation as to why the light was not working, the Tribunal is not satisfied the Builder breached the Warranties. Even if it were, the evidence falls short of establishing what the rectification works required are, and therefore the reasonable cost of the necessary work to be carried out.
3. This means that the Tribunal does not have sufficient evidence to award compensation, or for the rectification order the Owner submits the Tribunal should make, in any event.
4. Item 3 of the Second Tuckwell Report refers to poor patching which Mr Tuckwell saw in the stair wall around the light fixtures. Mr Tuckwell's opinion is that the Builder did not install the stairwell light fittings with due care and skill. The photographs on page 23 of the Owners Bundle confirm Mr Tuckwell's opinion and satisfies the Tribunal that Mr Tuckwell's view is well founded. Based on Mr Tuckwell's evidence, the Tribunal finds that the Builder breached the Warranties, in the way that it installed the light fixtures on the stairs.
5. There was no evidence as to the reasonable cost of fixing this defective work. The Owner submits that the Tribunal should make a work order to require the Builder to attend to the rectification of this particular item of work.

THE STICKER CLAIM

1. The Sticker Claim is the subject of item 1 in the Second Report (p 21 of the Owner's Bundle). Mr Tuckwell there describes that he saw manufacturer's stickers and markings still on the Windows. The Tribunal accepts Mr Tuckwell's evidence that it is good building practice, consistent with the requirements of the Warranties, for a Builder to remove manufacturer's markings and stickers. The Builder accepts this was a defect. Although the Application claims the amount of $500.00 for the cost of removing the stickers left behind by the Builder, there is no evidence that is the reasonable cost of having to do that work. The Owner submits that the Tribunal should make a work order to require the Builder to attend to the removal of the stickers.

THE DOOR CLAIM

1. Item 11 of the Second Tuckwell Report establishes that Mr Tuckwell found the front entry door hard to close and lock when he inspected the Residence on 7 December 2017. Mr Tuckwell established that the front door was installed out of alignment with the top of the door sitting against the door jamb in the closed position, while the bottom had a 10mm gap.
2. The Builder called no evidence to counter Mr Tuckwell's opinion that the Builder installed the front door out of alignment, or that something other than the Builder's work was the cause of difficulties observed by Mr Tuckwell. Accordingly, and for the same reasons referred to by the Tribunal in dealing with the earlier claims by the Owner, the inference is that no evidence or documents that were available to the Builder assisted the Builder.
3. The Tribunal accepts that good building practice, consistent with due care and skill, required the Builder to install the Residence's front door square and plumb, in an alignment that would prevent the door from sticking and being difficult to close, as Mr Tuckwell describes in the Second Tuckwell Report.
4. On the basis of Mr Tuckwell's evidence, the Tribunal finds that the Builder breached the Warranties by failing to install the front entry door of the Residence as the Warranties required. There is no evidence as the reasonable cost of realigning the front door, and the Owner submits that the Tribunal should make a work order to require the Builder to do so.

OTHER CLAIMS

1. The Owner relied on the photographs at pp 45 - 49 with the commentary attached to establish that the Builder's work in the areas shown was defective.
2. The Tribunal is able to see from the photographs evidence of water or moisture behind some areas that are the likely cause of the paint bubbling, and the water stains on the floor boards. There is no expert or other evidence that points to the cause of the problem, and no reference to the nature of the rectification work required. The Owner provided no evidence to show what the reasonable cost of making good this issue.
3. Even though the photographs suggest some breach of the Warranties by the Builder in some respect, the evidence does not establish what rectification works are required, and the reasonable cost of the work that is necessary. This means that the Tribunal does not have sufficient evidence to award compensation or make the work order the Owner submits it should make, even if there were a finding of breach of the Warranties by the Builder.

RECTIFICATION ORDER

1. Under s 48MA of the HB Act, the Tribunal must have regard to the principle that rectification of defective work by the responsible party is the preferred outcome.
2. Paragraph [5] of the affidavit that Mr Panicker affirmed on the day of the hearing indicates that the Builder was ready, willing and able to rectify any defects found. Here, because of the difficulties that the Owner has in establish any entitlement to compensation, the Owner also submits that the Tribunal should order the Builder to rectify the items of defective works the Owner has established.
3. Ss 48 O(1)(c)(i) of the HB Act refers to an order to 'do specified work' or 'perform any specified service' or 'any obligation'. Ss 48O(c)(ii) refers to an order to 'do or perform' ...'any specified act, matter or thing'. These are wide powers, but the Tribunal must identify a proper basis for an order which articulates a practical and certain resolution of the dispute, to put the Owner in the position the Owner should have been in had the Builder constructed the Residence as the Warranties required.
4. The Owner has the onus to establish to the Tribunal's satisfaction not only the Builder's breach, being what is the defective work is, but also the method of rectification. The definition of a scope of work must have sufficient certainty to enable the Tribunal to make an appropriate work order for rectification of the defective work.
5. The Builder submits that the Owner has not established the exact method of rectification required for any of the defective works claimed by the Owner, and accordingly, the Tribunal is not in a position where it can make a work order even though the Builder is prepared to rectify 'genuine defects' and the Owner is also prepared to permit the Builder to do so.
6. The Tribunal does not accept the Builder's submission that the evidence does not permit the Tribunal to make rectification orders for the Builder to rectify the: 1. roofing defects, as found by the Tribunal in the determination of the Carport Claim; 2. the lighting defects, as found by the Tribunal in the determination of the Lighting Claim; 3. the completion of the smoke alarm, as found by the Tribunal in the determination of the Fire Alarm Claim; 4. the supply and installation of a new electric motor fit for the purpose of the remote electric operation of the Residence's front gate, as found by the Tribunal in the determination of the Electric Motor Claim; 5. the repair of the defective landscaping, as found by the Tribunal in the determination of the Pathway Claim; 6. the rectification of the defective work associated with the installation of stairway lights, as found by the Tribunal in the determination of the Staircase Claim; 7. the defective installation of the Residence's front door found by the Tribunal, as part of the Door Claim.
7. Having regard to the scope of the works which the Tribunal orders the Builder pursuant to s 48O of the HB Act, within 21 days, to carry out the following rectification works: 1. the removal of the carport roofing, and the installation of replacement roof sheeting with material described in an invoice from NFX Metal Roofing for the supply and installation dated 24 April 2017, to the minimum pitch, fall, maximum spans and the arrangement for fastenings which are described in item 2 (pages 4 and diagram 1 and diagram 2) of a report by Mr Mark Tuckwell dated 19 December 2017 (the First Tuckwell Report); 2. cleaning back of all of the Carport's rusted surfaces and the application of appropriate rust inhibitors and the restoration of all cleaned surfaces to match existing finishes; 3. the installation of a transformer and its connection to any of the Residence's pool lights missing transformer and transformer connections to make them fit for operation and use as pool lights; 4. the removal of all of the Residence's inoperable external sensor lights, and the resupply and installation of replacement sensor lights with due care and skill so as to ensure their operation is not affected or compromised by water entry, with the replacement sensor lights to be of the same or equivalent make and standard to the sensor lights to be replaced; 5. the installation of a ventilation fan to mechanically ventilate the Residence's upstairs ensuite; 6. the removal and correction of the position of the present misalignment of the recessed lighting in the hallways of the Residence to bring the recessed lighting into alignment; 7. the rectification of all tool marks and cut outs described in the narrative of item 4 page 7 of the report of Mr Mark Tuckwell dated 9 March 2018 (the Second Tuckwell Report); 8. the completion of the installation of the smoke alarm describe in item 6 on p 14 of the First Tuckwell Report; 9. the supply and re-install an electric motor fit for the purpose of the electric remote operation the Residence's front gate of the same or similar make as the electric motor shown in the photographs taken for item 10 on p 18 of the Tuckwell Second Report; 10. repair and reinstatement of the current landscaping of the Residence's side path described in item 9 pp 15 and 16 of the Tuckwell Second Report, so that the landscaping works are brought into conformity with the standard illustrated in the diagram on 2 on p 16 of the Tuckwell Second Report; 11. repainting or resurfacing of the wall surfaces surrounding the light fittings shown in the photographs on p 23 of the Second Tuckwell Report so that the areas surrounding the light fittings matching and blend with the wall surfaces of the surrounding areas of the wall; 12. the removal and cleaning off of all stickers, markings and manufacturing labels from all of the Residence's windows; 13. the realignment, by removing and reinstalling if necessary, the Residence's front door to correct its swing and operation so that it sits square and plumb, the door locks operate as suitable to a normally functioning door, and so that the door swings, opens and closes without sticking.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2019