1. On 20 March 2025, after hearing the parties' sworn evidence and providing oral reasons, I made the following orders:
   1. The respondent must pay the applicant damages assessed in the amount of $1,000.
   2. Costs are reserved. Any party who seeks an order for their costs of the proceeding must file an application within 42 days of these orders together with supporting affidavit material and submissions. The Tribunal will determine any costs application on the papers, unless otherwise ordered. If no costs application is made, there will be no order as to costs.
2. At the hearing, the applicant called Mr Leo Chung, a structural engineer, to give expert opinion in relation to his report dated 25 September 2024. The respondent did not call an expert to give evidence.
3. The applicant has requested written reasons for the orders.
4. I now provide my reasons with minor and non-substantive corrections to the reasons I gave orally at hearing.

1. This is a claim by the applicant (owner) in relation to the construction of a new home on the applicant's property in an eastern suburb in Melbourne, pursuant to a building contract dated 15 May 2019. The building work was carried out by the respondent (builder) and completed in March of 2020. An occupancy permit was issued on 26 March 2020 and settlement of the construction and handover occurred in April 2020.
2. The builder says that it carried out a final clean of the site on or about 21 April 2020.
3. In this claim, the applicant seeks damages for:

(a) defective building work;

(b) overpayments under the contract, and

(c) loss of income for not being able to rent out the property from May 2020.

1. The amount claimed by the applicant, for the cost of rectifying the defective work is $25,665 and $5,040, which the owner claims to have paid for rectification work.
2. In relation to the breach of contract overpayment claims, the owner claims $3,228.00 and, in relation to the loss of income claim, the applicant says that her loss is $56,332 which is based on a rental of $720 per week from May 2020 until November 2021.
3. The builder disputes all claims by the applicant.
4. I will deal first with the claims for defective work which are set out in paragraph 8 of the applicant's Amended Points of Claim dated 23 July 2023.
5. The owner claims approximately twenty items of defective or incomplete or non-compliant work. In relation to the first item, which is in paragraph 8(a)(i) of the pleading, the applicant alleges that the colour of the bedroom wardrobe does not match the colour of the wardrobes in the other two rooms and says that, although it is not clear in the contract, her claim is that the builder was required to colour match the wardrobes in each room.
6. The builder disputes the claim and says that the colour of the wardrobes is consistent with the contract and they have been finished in accordance with the contract. The builder further says that the difference in colour was the subject of variation during the work which was read by the owner.
7. I should say that I explained to the applicant in the course of the hearing that the applicant had the obligation to prove her claims on the balance of probabilities and in this case that meant that the applicant must prove, firstly, it is more likely than not that there is a defect or incomplete or non-compliant work. Secondly, that it is more likely than not that it was the builder was responsible for that defect or non-compliant or incomplete work. And thirdly, the applicant must prove it is more likely than not that the cost of rectification and scope of rectification is reasonable and necessary.
8. In relation to claim 1, I find that the applicant has not proved on the balance of probabilities that the colour of the robes being inconsistent with the colours of the robes in the other rooms constitutes a breach of contract.
9. Item 2 is an allegation by the owner that exterior decking is non-compliant with either the relevant building standards or the contract in that the decking has not been painted or stained. The builder says that painting and staining of the deck is not part of the contractual scope of work and all the builder was required to do was to construct the deck and leave it in a raw finish. The owner was unable to show me where the contract contains an obligation on the builder to stain or paint the deck. Accordingly, I am not satisfied the owner has proved that claim on the balance of probabilities.
10. The third claim relates to uneven painting and scratches on the hallway door and this claim is related to a further claim, which is Claim 19, concerning uneven paint on the wall in the master bedroom. The owner says that, at the time of handover, there was uneven painting and scratches on the paintwork in the hallway as well as uneven painting on the wall in the master bedroom, together with scratches or poor paintwork on some of the windows.
11. The owner's allegation is supported by Mr Andrew Muling's report dated 12 March 2020 (of Jim's Building Inspections) that the owner relies on which chronicles, through a number of photos, paintwork issues in the house. The builder says it attended to all or most of the painting defects at the time they were pointed out at completion and referred to in the Jim's Inspection report and therefore disputes the claim. The owner acknowledges that many of the painting items have been attended to but says there are still outstanding items particularly to do with the windows and the owner has provided a quote from Dragoon Contracting for $1,800 which involves repainting all of the windows. The owner gave evidence that she considers that five of the windows still have paintwork problems. The other expert report she relies on by Mr Leo Chung, which I've referred to as the Leo report dated 25 September 2024, refers to two windows which have painting issues at the time of the inspection by Mr Leo in August 2024. On the evidence before me, I'm not satisfied that these painting defects are still present and, if they are, I am not satisfied that they have been caused by the builder. Accordingly, this claim fails.
12. The next claim is Item 4 by which the owner alleges that the laundry room door has been installed improperly. The owner, through her expert, Mr Chung, says that the sliding door to the laundry has a discrepancy in that the door itself has a frame which is consistent with the fixed frame or fixed section of the door which receives the sliding door. The builder disputes that this is a defect because the applicant's expert, Mr Chung, during cross examination, could only say that it is inconsistent and acknowledged it may not be defective. I was not taken by the owner to what the contract drawings or specifications provide for the configuration of the sliding door and I'm unable to determine whether it does not comply with the contract or if it is a defect. Accordingly, this claim fails.
13. The next claim is Item 5 which relates to the windows being damaged and has scratches at various locations. I have already dealt with this in my reasons in relation to Items 3 and 9 and I am not satisfied on the balance of probabilities that the owner has proved this claim.
14. The next claim relates to the retaining wall. The owner alleges that the builder constructed the retaining wall improperly in that a sleeper has not been properly installed. The builder disputes this and considers that it has been properly installed. Mr Leo in his report says that at his inspection, the retaining walls around the building had already been installed and he cannot say if the retaining wall had been incomplete at the time of handover and he notes that there was no mention of incomplete work regarding retaining walls in the Jim's Inspections report. Accordingly, I find that there is insufficient evidence on the balance of probabilities to prove this claim.
15. The next claim relates to the roof cladding being damaged and scratched. The roof cladding claim is broader than that description and I will deal with that by referring to Mr Leo's report where at 2.1 he talks about a section of cladding lifting in the upper roof. He says that is a defect but is unable to determine if the defect was present at the time of handover in April of 2020. The applicant was unable to provide any evidence, photographic or otherwise, of that cladding lifting at the time of handover. Accordingly, the claim is unsuccessful.
16. The second aspect of the roof cladding issues is found in clause 2.2 of the Leo report where he observes that the parapet wall flashing joint seal has deteriorated and acknowledges that it is difficult to assess whether this deterioration was present at the handover stage. Again, the owner has not provided any evidence that, at the handover stage, this issue existed. Accordingly, this aspect of the roof cladding or roof plumbing claim fails.
17. The third aspect relates to scratches and minor damage on roofing components and in clause 2.3 of the Leo report, Mr Chung observes that there are minor cracks on the surface of the colour bond roof cladding. He says that the damage is minor and doesn't compromise the functionality of the roofing materials. Therefore, he considers that the materials are in suitable and serviceable condition. He notes that, at the final inspection by Jims Building Inspections, these defects, being the scratching, was present before handover. Mr Leo recommends that the remedy for this problem is the application of the coating system to affected areas to prevent deterioration and corrosion. I asked during the hearing what Mr Leo considered was a reasonable cost to apply that coating and he estimated it would be $800-$1,000 and I did not know if he was giving that figure inclusive of GST or exclusive of GST. I find this is a defect for which the builder is responsible, and I will award $1,000.00 for the rectification of that defect. The $1,000 figure includes GST.
18. The next item is item 8 which is the down pipes. The owner alleges that the down pipe near the front entry door hasn't been properly installed. Mr Leo considers that in clause 2.4 of his report that the working drawings indicate that the round down pipe is to be installed in that location and there's no overflow provision and he considers that this installation is compliant and consistent with the working drawings. Accordingly, I find that this item is not a defect and the claim fails.
19. The next item is Item 9 by which the applicant alleges that the shower head was missing in one of the bathrooms. The owner gave evidence that the shower heads was missing and had to be replaced, yet the applicant was unable to establish whether the shower head was missing at the time of handover. The builder through Mr Douglas gave evidence that the shower head was installed at the time of handover and provided photographic evidence of this. I am therefore satisfied that the shower head was installed at the time of handover therefore the applicant's claim is unsuccessful.
20. The next item is Item 10 by which the owner alleges the builder has failed to install fly screens to the windows of the new home. The owner says that the builder was obliged to provide fly screens under the contract. The builder disagrees and said there is no provision for the installation of fly screens in the contract. The owner was unable to provide me with clear evidence in the contract that fly screens were to be supplied and installed by the builder. Accordingly, I am not satisfied that fly screens were not part of the contractual scope of work and this claim fails.
21. The next claim is Item 11, which is tiling in the ensuite bathroom was incomplete. The owner alleges that the builder was responsible under the contract for tiling of the walls of the ensuite bathroom and toilet and this has not been done. The builder disputes the claim and says that tiling was not part of the contract and had been excluded. The owner was unable to provide evidence that the tiling was part of the contractual scope and therefore I find that the owner has not proved her claim on the evidence.
22. The next claim is Item 12 which is the site not being properly cleaned., and The owner alleges that the builder failed to properly clean the site at handover. The owner alleges that the builder left debris, soil and builder's work items on the site and did not remove them prior to handover as it was obliged to do under the contract. Specifically, the owner alleges that a large amount of soil and rock at the rear of the property was not removed by the builder as it was required to do. The owner gave evidence that she arranged for Jims Mowing in April 2020 to attend the site and remove all of the builder's rubble and soil and rock that had not been removed. The builder disputes the claim and provided photographic evidence taken by the builder around 21 April 2020 that it had cleaned the site properly, removed debris, rock and soil, etcetera and the photographs show this. I do not accept the owner's evidence and prefer the builder's evidence regarding the removal of the soil and debris from the site and determine the owner has failed on the balance of probabilities to prove this claim.
23. The next item is item 13. The owner alleges that the washing machine or provision for a second washing machine was not provided by the builder because no waste or waste connection had been provided. The owner says that she had to get a plumber to install a connection or provision for waste and she incurred $120.00 for that item. The builder disputes the claim and says that the builder did provide a waste connection. I am confused, on the evidence about this claim, about the precise nature of the claim. The owner was unable was unable to provide any photographic evidence of the work that she referring to as being incomplete or not properly done. I am not satisfied on the balance of probabilities that the owner has proved this item and it fails.
24. The next item is Item 14 by which the applicant alleges that the temperature limiting valve on the hot water unit is not properly set up. I found this claim very confusing because the owner's evidence in support of this claim was that she was notified by a tenant in or about March 2021 that there was no hot water to the property. She arranged a plumber to attend to this problem and fix the problem so that the tenant could enjoy hot water. But the claim is not that the builder had failed to install hot water or connect hot water to the property but failed to preset or set the temperature limiting valve on the hot water service. The claim seems to be at odds with the evidence and accordingly I am not satisfied the owner has proved the claim on the balance of probabilities. The claim fails.
25. The next item is Item 15 which is an allegation by the owner that the painting on the stairs was incomplete. I think this is a misdescription of the owner's claim. The owner gave evidence that she had under contract, requested or selected a gloss finish to the painting of the stairs but the builder had finished the stairs with a matt paint finish. The builder disputes the claim and says that the stairs have been painted in accordance with the specifications in the contract. I asked the applicant if the contract provides for a paint with gloss finish or matt finish and the applicant responded that the contract was silent about the finish. All she could say was that she verbally requested that the paint be a gloss finish and the builder failed to apply that. I note the builder said one of the reasons why it considers paint to the stairs to be compliant with the contract is because paint which is of a matt finish provides more grip when people use the stairs as opposed to a gloss finish. Accordingly, I'm not satisfied the owner has proven this claim on the balance of probabilities.
26. The next item is Item 16 which is some cracking to the floorboards in the study room. The owner acknowledged this item had been fixed the builder after handover and it wasn't being pursued as part of the claims in this hearing.
27. The next item are related items, Item 17 and Item 18, concerning the concrete floor in the driveway and garage. The owner alleges the concrete in these areas are cracked and stained and, therefore, defective. The owner's expert, Mr Chung, disagrees. He says the cracking which is present is of a minor nature and falls within the tolerances for concrete cracking withing the guides, standards and tolerances. Accordingly, he does not consider it a defect. Accordingly, I find the applicant has failed to prove these claims on the balance of probabilities.
28. The next item relates to which Item 20. I have dealt with Item 19, which is a painting issue. Item 20 is an allegation by the owner the builder has not provided a cover or a cap on a stormwater drainage pipe at the time of completion of the work. The owner relies on a photo taken by her plumber taken in June 2021 and that photo is referred to in the Leo report. It shows the drainage pipe without a cap on it and holding some water. The builder disputes the cap was not installed by the builder. I note the alleged missing cap is not referred to in the Jim's Inspection report of March 2020. I am not satisfied that the owner has proved his claim on the balance of probabilities. I am not satisfied that it has been established that the builder has not installed the cap.
29. That completes the claims for defective work.
30. The next claim is the contractual claim by the owner that she has been overcharged $3,228.00 by the builder under the contract for windows and the supply and installation of windows and doors. The owner agrees that she was required to pay approximately $24,000 for windows and doors under the contract. However, she says that subsequent to signing the contract, she received a quote from the builder for approximately $21,000 for the windows and doors and therefore believes that she should be credited the difference between the agreed contractual amount and what she says was a variation for the cost of the windows and doors. The builder disputes the claim and says that the quotation merely demonstrates an accounting issue which I have had trouble understanding. The builder says that the quote merely explains a difference in value and pricing of the doors and windows and references the $3,228.00 as being part of the contractual price for the cost of the doors. In other words, the builder says, there was no change or variation to the contractual price for windows and doors. It seems to me that this claim was really a claim by the applicant for clarification of the amount charged by the builder under the contract for these items. Accordingly, I'm not satisfied that on the balance of probabilities that the owner is entitled to a credit for the cost of the windows and doors.
31. Another item which is a contractual item that relates to the alleged height difference between the laundry door and the rest of the internal doors to the building work. The owner alleges that the laundry door has been constructed lower than the height of the other doors and she gave evidence that the builder agreed to increase the height of the laundry door to be consistent with the other doors. The builder disputes the claim and says that there was no agreement and the contract does not provide for laundry door to be at the same height of the other doors because the builder considers the laundry door to be an external door whereas all the other doors which are higher are internal doors. The builder submitted that this explains why there is an increase in height and denies that there was an agreement to make the laundry door consistent in height with the internal doors. The owner was unable to provide any evidence in support of her allegation that there was an agreement to increase the height of the laundry door before or during construction. Accordingly, I'm not satisfied that the owner has proved their claim on the balance of probabilities.
32. The next claim is a new claim by which the owner alleges the builder has failed to install or provide rather than display a termite notice, which is evidence that there has been termite treatment of the building work by the builder. Mr Chung says in his report he observed he couldn't find a termite notice and it is usually put in the meter box at the property. He says that this is non-compliant with the relevant regulations. The builder responded by saying that it had issued a certificate of compliance which references the termite treatment and that is sufficient or is sufficient and does away with the requirement to display a notice. I accept the builder's evidence and note that the builder has agreed to supply a certificate of compliance to the owner after this hearing.
33. The final claim in this proceeding is the consequential loss claim. The owner alleges that she was unable to rent out her property due to the defective and incomplete work following handover and that she has lost considerable rental income from May 2020 to November 2021.
34. She claims approximately $56,000.00. The applicant gave evidence that before or after handover, she placed the property in the hands of an agent to identify a tenant, to try to locate a tenant for the property. Between handover and July 2020, she identified numerous defects, many of which are subject to claims in this proceeding via Jim's Inspection report and she had notified the builder of those defects and required the builder to fix them. She says that the builder failed to fix some of the defects which, again, are the subject of the claims in this proceeding. She says she was forced to initiate the claim through the Domestic Building Dispute Resolution Victoria in July 2020 and that process concluded in February 2021. She, through her agent, was able to find a tenant in February 2021 and the lease was signed on 1 March 2021. The lease was short-lived. She says the tenants moved out shortly after taking possession because of the defects, particularly the hot water issue. She also gave evidence that her rental agent told her in mid to late 2020 that could not rent the property with the defects because the defects meant that the property did not meet the appropriate rental standards.
35. The applicant did not provide any written evidence or report from the agent or suitably qualified person to say that the existence of the defects was such that the property could not be rented or indeed occupied. I find that the owner has failed to prove the claim for the loss of income on the evidence before me. There is no evidence before me other than some hearsay evidence that the property could not be tenanted because of the existence of the defects. The applicant did not call the agent who told her that condition of the property did not meet the current rental standards.
36. Further I find that the owner was under obligation to minimise her loss and was able to do so by having the defects rectified at an early stage and then arrange for the property to be rented. The applicant gave evidence that she was expecting the builder to fix the defects and that's why she did not have them fixed herself. I do not accept that evidence. There was nothing that could have stopped the owner taking steps to have the defects rectified at an early stage and then put the property back on the market for rent. Accordingly, the claim for consequential loss fails.
37. I will make the following orders that the respondent must pay the applicant damages assessed in the sum of $1,000.00.