Booth v Langlands Building Group; Langlands Building Group v Booth

[2018] NSWCATCD 73

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Booth v Langlands Building Group; Langlands Building Group v Booth [2018] NSWCATCD 73

Hearing dates:

8 October 2018

Date of orders:

28 November 2018

Decision date:

28 November 2018

Jurisdiction:

Consumer and Commercial Division

Before:

J Smith, Senior Member

Decision:

1. The builder, Langlands Building Group Pty Ltd, shall pay the painter, Troy Booth and Megan Booth, jointly and both trading as “TB Painting and Decorating”, the sum of $28,588.89 immediately.

 

2. The applications are otherwise dismissed.

 

3. If any party seeks a costs order leave is granted to file and serve a short written submission on that issue only within 7 days of the date of these orders.

 

4. Leave is granted for the other party to file and serve a short written submission in reply within a further period of 7 days.

 5. In any such submission the parties shall indicate whether they are content for the issue of costs to be determined “on the papers” or whether they request a hearing on the issue.

Legislation Cited:

Civil and Administrative Tribunal Act 2013
Fair Trading Act 1987
Home Building Act 1989

Cases Cited:

Jones v Dunkel [1959]101 CLR 298
Manly Council v Byrne and Anor [2004] NSWCA 123
Pavey and Matthews Pty Ltd v Paull [1987] 162 CLR 221
Renard Constructions (ME) Pty Ltd v Minister for Public
Works [1992] 26 NSWLR 234

Category:

Principal judgment

Parties:

Langlands Building Group Pty Ltd (“the builder”)
Troy Booth and Megan Booth T/as TB Painting and Decorating (“the painter”)

Representation:

Counsel:
Mr Martin (the builder)

  Solicitors:
Mr Atkinson (the painter)

File Number(s):

HB 18/17768; HB 18/27387

Publication restriction:

Nil

REASONS FOR DECISION

Background and jurisdiction

1. Application HB 18/17768 was filed on behalf of Langlands Building Group Pty Ltd on 18 April 2018. The application sought orders for compensation in the sum of $94,490 in respect of allegedly defective residential building work performed by Troy and Megan Booth t/as TB Painting and Decorating.

2. Application HB 18/27387 was filed on behalf of Troy and Megan Booth on 8 June 2018 seeking orders for $12,000 plus an indeterminate amount for loss of profits and payment for variations on a quantum meruit basis.

3. Both matters came before me for hearing on 8 October 2018 and they were heard concurrently with the evidence in one being treated as evidence in both.

4. I have throughout this decision referred to Langlands Building Group Pty Ltd as “the builder” and to Mr and Mrs Booth t/as TB Painting and Decorating as “the painter”.

5. At the conclusion of the hearing leave was granted for the painter to file and serve a short written submission on the issue of whether the painter was able to maintain a claim for payment pursuant to the contract in light of the provisions of the Home Building Act (HBA) s 10, within seven days. Leave was granted for the builder to file and serve a short written submission in reply within a further seven days. The painter did file a submission on 12 October 2018. No submission in reply was filed by the builder.

6. As the period of time for filing submissions has now expired the applications have been referred to be for determination. This is the decision in both matters.

7. There was no dispute between the parties that the Tribunal has jurisdiction pursuant to the provisions of the Home Building Act 1989 (HBA) s 48K and the Civil and Administrative Tribunal Act (NCAT Act) Part 3 to hear and determine the applications.

8. However, it was the builder’s submission that the contract entered into with the painter was for internal painting work only. It is noted that internal painting only is excluded from the definition of residential building work by the provisions of the HBA Schedule 1, cl 2(3)(g).

9. For reasons provided below the builder’s submission on that point is rejected and in any event appears to have changed during the course of the hearing. I am satisfied the contract entered into between the parties was for performance of both internal and external painting and that the work the subject of this dispute is therefore not excluded from the definition of “residential building work”.

10. There is a further issue relating to jurisdiction that I have dealt with in consideration of the builder’s claim.

11. Both applications were, I am satisfied, properly brought in the Tribunal and the Tribunal has jurisdiction to hear and determine both.

Builder’s relevant submissions and evidence

12. It was common ground that the painter was a sub-contractor of the builder who had been engaged by homeowners to build what was referred to as a “high end” building at a cost of approximately $1.5M at Abernethy St, S---. It was the builder’s submission that on 25 September 2015 the painter had quoted $27,060 to perform a scope of painting to the interior of the building which was being constructed at S---.

13. During the course of the work the homeowners had expressed to the builder dissatisfaction with the quality of the painting and the builder’s representative had inspected the work in March 2016. Following discussions with the painter the parties had, on or about 10 March 2016, executed an agreement intended to resolve the issue of defective work by the painter performing certain remedial work. If the work was performed to the satisfaction of the builder’s client (the homeowner) the agreement provided for payment by the builder to the painter on a room by room basis. In the alternative, if the builder’s client rejected the painter’s work, the builder would engage others to rectify any defects and the painter would be issued a “backcharge notice”.

14. The builder’s case was simply that the remedial work performed by the painter pursuant to that agreement had not met the approval of the builder’s client and accordingly the builder had engaged others to perform the work at a cost of $93,830. The builder sought orders that the painter now pay that sum to the builder.

15. The builder relied on the statement of David Russell Langlands, director of the building company, dated 8 June 2018 and adopted on affirmation. Mr Langlands was cross examined on his evidence.

16. In addition the builder relied on a quotation, dated 16 June 2016, in the sum of $93,830 given by Sarab Australia Pty Ltd (Sarab) and evidence in relation to payment of various sums to Sarab amounting, in all, to more than $100,000. The builder’s submission was unable to explain the discrepancy between the amount quoted by Sarab and the sum paid to that company by the builder.

17. Clearly, it was submitted, the painter’s work was rejected by the homeowners and required that the builder engage others to rectify it. Pursuant to the agreement reached by the parties on 10 March 2016, the builder was therefore entitled to be paid the amount the builder had paid to Sarab.

Painter’s relevant submissions and evidence

18. It was the painter’s position that the contract had been improperly terminated by the builder and that the painter was entitled, pursuant to the contract, to what was referred to as accrued rights and loss of profits in the approximate sum of $15,000 or in the alternative the sum of $16,700 based on quantum meruit plus payment for variations made to the work at the request of the builder’s representative in the sum of $11,800.

19. The painter relied on the witness statements dated 7 June 2018, 23 August 2018 and 13 September 2018 made by Mr Troy Booth adopted on affirmation and the expert reports of Mr Iskowicz dated 18 June 2018 and 13 September 2018 adopted on affirmation. Mr Booth and Mr Iskowicz were cross examined on their evidence.

20. The painter denied that he had provided a quote for internal painting in the sum of $27,060 for the property at S--- as alleged by the builder but instead claimed that he had provided a quote for both internal and external painting of the S--- property in the sum of $28,710.

21. Work was performed by the painter between October and December 2015 but was suspended by the painter for non-payment by the builder of an invoice dated 16 December 2015 in the sum of $12,000. In total, the sum paid by the builder to the painter was said to be $11,484.

22. The painter re-commenced work on 8 February 2016 in the expectation of being paid for the December 2015 invoice. At the end of February 2016 the builder advised that the homeowner was dissatisfied with some of the work.

23. The painter agreed that he had signed the document referred to by the builder on 10 March 2016 but denied that there were defects in his work requiring rectification or that he had caused any damage to the property on which he was working. It was the painter’s evidence that on 15 March 2016 he had been denied further access to the site to complete his work. He initially remonstrated with the builder’s representative claiming that he had the right to return to site but when that was denied he accepted the denial of access as a repudiation of contract by the builder and elected to treat the contract as being terminated.

24. In reply to the builder’s claim for compensation it was noted that the builder relied only on the statement of Mr Langlands and had not provided evidence from his employee Kevin Lucas or from his clients, the owners of the subject home. The Tribunal was invited to draw an adverse inference from that failure based on the principles set out in Jones v Dunkel [1959]101 CLR 298.

25. In regard to the agreement reached by the parties on 10 March 2016 it was noted that the agreement required the painter to remedy only those defects created by him, not those created by others. Furthermore, the builder had failed to provide proper evidence of what the defects were or that they had been created by the painter or what was the reasonable scope of remedial work or the fair and reasonable cost of rectification of the defects.

26. It was noted that there were no photographs of the alleged defects and there was no expert report relating to the nature and extent of the alleged defects.

27. The agreement made by the parties on 10 March 2016 also required the owners of the property to approve or reject the quality of the works. Other than hearsay evidence of David Langlands there was no evidence that the owners of the property had rejected all or some of the work. On the other hand, Mr Booth gave evidence that the defects identified by stickers were variously scuff marks and dents caused by others and paint drips and roller marks.

28. The expert opinion provided by Mr Iskowicz was that it was not possible to determine what work, if any, had been conducted by Sarab and concluded that the work for which payment was sought had not been carried out.

29. In regard to the cross claim the painter’s submission calculated the amount outstanding pursuant to the contract based on the original quotation in the sum of $28,710 less an allowance for incomplete work as provided in the Iskowicz report and less the payments already made. The sum allegedly owing under the contract was said to be $15,247.65.

30. In the alternative, based on the opinion of the fair and reasonable value of the work performed as calculated by Mr Iskowicz and allowing for the payments already made, the painter sought payment of $16,736.94. Based on the decision of Renard Constructions (ME) Pty Ltd v Minister for Public Works [1992] 26 NSWLR 234, the painter elected to make his claim pursuant to a quantum meruit.

31. However, if the Tribunal determines that the contract was not terminated because of the builder’s repudiation, the painter claimed the lesser amount of $15,247.65 under the terms of the contract plus variations.

32. In addition the painter sought payment for the variations to the work based on the fair and reasonable cost of the variations as calculated by Mr Iskowicz in the sum of $11,851.95

What work did the parties contract for and how did the contract terminate?

33. I was much more impressed by Mr Booth as a witness than I was with Mr Langlands. Mr Booth was straightforward with his evidence and attempted to deal with all issues put to him. Mr Langlands on the other hand had a poor memory for details and did not dispute that he had failed to provide evidence from his employee, Mr Lucas, or the homeowners, both of which would be relevant to the accuracy of his own evidence. Further, despite having had an opportunity to provide evidence in reply to the statements of Mr Booth, Mr Langlands had failed to do so.

34. Mr Atkinson, for the painter, relied on the principles set out by the High Court in Jones v Dunkel [1959]101 CLR 298 and in that regard further relied on the decision of the New South Wales Court of Appeal in Manly Council v Byrne and Anor [2004] NSWCA 123 to the following effect,

35. “….the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw an inference fairly to be drawn from the other evidence ….”

36. I accept that the inference to be drawn from Mr Langlands’ failure to provide evidence to corroborate his own in regard to termination of the contract or the existence of any defects in the work at the time the contract was terminated is that Mr Booth’s evidence should be accepted as more reliable.

37. The builder relied on a quotation said to have been provided to him by the painter and dated 25 September 2015. The quotation was in the sum of $27,060 and the scope of work described was internal painting only, including three bedrooms at the address of Moore St, C---. The builder gave sworn evidence to the above effect and insisted under cross-examination that the subject quote did relate to the work carried out by the painter.

38. The builder was unable, under cross examination, to explain the fact that the quotation relied on by him was for internal painting only, had been corrected to provide for internal and external painting without any change in the quoted sum, and that there was a discrepancy between the quote provided (Exhibit 3) and the quote relied on by Mr Booth in that the quote provided by Mr Booth was for the property at Abernethy St, S--- where the work was actually carried out whilst the one relied on by Mr Langlands referred to a property purchased by Mr Langlands at Moore St, C---.

39. Although Mr Langlands denied having altered the quote provided by Mr Booth for work to be done at the Abernethy St, S--- property, I am satisfied that the actual quote provided by Mr Booth for the work at that property was dated 20 September 2015, numbered 1198, included internal and external painting and was in the sum of $28,710.

40. Under cross-examination the builder did not dispute that he had engaged Sarab whilst the painter, Mr Booth, was still under contract to his company. That acknowledgement was made despite the builder’s sworn statement that he had terminated the painter’s contract in March 2016 and had not engaged Sarab until May 2016.

41. Mr Langlands did not dispute that the remedial work said to have been carried out by Sarab was originally quoted by Mr Booth for about $17,000 and that he had accepted a quote from Sarab for $93,000 for remediation of that work but had no idea what another painting contractor would have charged. Further, Mr Langlands did not dispute that Sarab did not hold a valid licence to carry out the work under that contract. Under cross-examination Mr Langlands was unable to explain the discrepancy between the sum he had contracted with Sarab for the remedial work and the sum actually paid to them, which differed by many thousands of dollars.

42. It was not disputed that the builder had cash flow problems in December 2015 and early 2016 and was unable to pay his sub-contractors but Mr Langlands denied that the painter had for a time suspended work for that reason.

43. The evidence of Mr Booth was that he had returned to the site to complete work pursuant to the agreement made by the parties, despite the fact he had not received full payment for the work already completed. The undisputed evidence of the painter was that Kevin Lucas, on behalf of the builder, had informed him on 15 March 2016 that he could not, from that date, come back on site.

44. I am satisfied Mr Booth’s contentions are correct. Firstly that the contract entered into between the parties was for internal and external painting at Abernethy St, S--- in the sum of $28,710 as set out in the quotation provided on that day and appearing at annexure B to Mr Booth’s statement of 7 June 2018.

45. No corroborative evidence was provided by the builder that the homeowner had rejected the painter’s work as at 15 March 2016. No evidence was provided by the builder that there were any defects in the painter’s work as at 15 March 2016, other than the bald assertion by Mr Langlands that there had been a spillage of paint which was poorly corrected.

46. For these reasons I am satisfied that the builder’s actions in excluding the painter from the site from 15 March 2016 amounted to a fundamental breach of contract and that the contract terminated at common law on that date.

47. An alternate way of looking at the termination issue is that the builder’s exclusion of the painter from the building site amounted to a repudiation of contract demonstrating the intention of the builder to no longer be bound by the terms of the contract. In those circumstances, it was argued by the painter, the painter was entitled to treat the contract as having terminated at common law.

48. I believe that argument is not significantly different to the finding of fundamental breach, above. In any event I am satisfied the contract terminated on that date by the unlawful actions of the builder in excluding the painter from the site in breach of its contractual obligations.

49. Following that factual finding the builder’s claim would normally be limited to a claim for compensation for any work shown to be defective as at the date of termination in accordance with the warranties provided under the HBA s 18B. However, the builder’s submissions made it perfectly clear that no claim was made pursuant to the statutory warranties provided by the HBA.

50. The builder’s claim was limited to any liability the painter may have arising under the agreement entered into by the parties on 10 March 2016.

What is the effect of the agreement made by the parties on or about 10 March 2016?

51. There is no dispute that the parties, in order to settle their impasse over payments for work and alleged defects entered into an agreement on or about 10 March 2016.

52. That agreement, shortly stated, provided for

53. The painter to repaint each room “to fix defects created by him”,

54. Subject to the approval of the works by the homeowners, the builder to pay the painter – on a room by room basis,

55. If the homeowner rejected the work, the painter to be issued a “backcharge notice” and another painter engaged to fix defects.

56. That agreement involved performance of work by the painter consisting only of internal painting. Pursuant to the provisions of the HBA Schedule 1 cl 2(3)(g) that work is specifically excluded from the definition of residential building work for the purpose of the HBA. Accordingly there is no jurisdiction for the Tribunal to hear and determine the builder’s claim pursuant to the provisions of the HBA s 48K.

57. However, the Tribunal does have jurisdiction to hear and determine the builder’s claim as a “consumer claim” pursuant to the provisions of the Fair Trading Act 1987 (FTA) s 79J. The builder’s claim was for $93,830 and the Tribunal’s order making power for consumer claims is limited by the FTA s 79S to $40,000. Hence any order made in favour of the builder based on alleged breach by the painter of the agreement made by the parties on 10 March 2016 would be limited to $40,000.

51. The painter’s submission, not refuted by the builder, was that his obligation under that agreement was only to fix the defects created by him. The painter’s evidence was that there were a number of unsatisfactory issues with the work when shown to him being dents and scuff marks, created by others, but that at the time of termination of the contract the work was not defective by reason of anything the painter had done.

52. The builder’s evidence in regard to the condition of the painting was simply a conversation he allegedly had with the painter, which was denied by the painter, in which the builder claimed to have said “This is a bad paint job, there is no undercoat, or the wrong undercoat used”. The builder further alleged that there had been paint spillage which was poorly cleaned up by the painter, which was also denied.

53. There was no independent evidence provided by the builder to substantiate the proposition that the painter had failed to meet his obligation under their agreement. There was no evidence of any defect caused by the painter that was still evident as at 15 March 2016 when the contract was terminated by the builder. There were no photographs of the allegedly defective work and neither Mr Lucas or the homeowner or those ultimately engaged to carry out remedial work, provided any evidence of defects caused by the painter that required remediation or the scope of such remediation.

54. I am therefore not satisfied that the builder has discharged his burden of proof that the painter is in breach of his obligation imposed by their agreement of 10 March 2016 in regard to the quality of the work performed.

55. The second element of the agreement was that the work carried out by the painter was subject to the homeowner’s approval. The only evidence on that issue was the statement of Mr Langlands that “the owners were not happy with the paint job on their new house and wanted it rectified”. There was no evidence from the homeowners themselves that they had made a statement consistent with Mr Langland’s evidence or when it was made or to what defective work it referred. Mr Langlands’ evidence on that issue was unable to be tested.

56. There was no submission by the parties as to what a “backcharge notice” was intended to be or that reference to it in their agreement signified that Mr Booth had agreed that he would pay whatever sum another painting contractor would charge the builder. There was no evidence of the scope of the necessary remedial work arising from an alleged breach by the painter of his obligations under the agreement or of the reasonable cost of rectification.

57. Even if the builder had established that the painter was in breach of his obligation under the agreement (which he has not) and even if the builder had established the homeowner rejected the work (which he has not) I do not accept that the agreement entitled the builder to simply contract with a third party without regard to the scope of work, or the cost of doing it, and expect that the painter would be liable for that sum.

58. For the above reasons I am not satisfied that the builder has demonstrated that the painter is liable for any sum incurred by the builder for remedial painting work after termination of the contract on 15 March 2016.

59. That decision disposes of the builder’s application which must be dismissed.

60. Turning now to the painter’s claim.

Relevant legal principles

68. Having established that it was the builder who invalidly and without lawful excuse terminated the contract on or about 15 March 2016 it follows that the painter is entitled to be paid the value of the work performed up to that date, either as calculated in accordance with the contract or as a quantum meruit. It should be noted that the painter did not seek damages in regard to loss of profits arising from the builder’s fundamental breach of contract.

Is the painter precluded from claiming under the contract by reason of the HBA s10?

69. The Tribunal raised with the parties the issue of whether or not the painter was precluded by the operation of the HBA s 10 from making a claim pursuant to the terms of the contract. Leave was granted for the parties to file short written submissions on that issue.

70. The applicant’s submission was that the HBA s 7(8) provides

7 Form of contracts (other than small jobs)

Note: Section 7AAA applies to contracts for small jobs.

(1A) This section applies to a contract only if the contract price exceeds the prescribed amount or (if the contract price is not known) the reasonable market cost of the labour and materials involved exceeds the prescribed amount. The

"prescribed amount" is the amount prescribed by the regulations for the purposes of this section and is inclusive of GST.

(1) A contract must be in writing and be dated and signed by or on behalf of each of the parties to it.

(2) A contract must contain:

(a) the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and

(b) the number of the contractor licence, and

(c) a sufficient description of the work to which the contract relates, and

(d) any plans and specifications for the work, and

(e) the contract price if known, and

(f) any statutory warranties applicable to the work, and

(f1) the cost of cover under Part 6 or 6B (if insurance is required under Part 6), and

(g) in the case of a contract to do residential building work--a conspicuous statement setting out the cooling-off period that applies to the contract because of section 7BA, and

(h) in the case of a contract to do residential building work (other than a construction contract to which the Building and Construction Industry Security of Payment Act 1999 applies)--details of any progress payments payable under the contract, and

(i) in the case of a contract to do residential building work--a statement that the contract may be terminated in the circumstances provided by the general law and that this does not prevent the parties agreeing to additional circumstances in which the contract may be terminated, and

(j) any other matter prescribed by the regulations for inclusion in the contract.

(3) The contract must comply with any requirements of the regulations.

(4) If the contract price is known, it must be stated in a prominent position on the first page of the contract.

(5) If the contract price is not known or may be varied under the contract, the contract must contain a warning to that effect and an explanation of the effect of the provision allowing variation of the price. The warning and explanation must be placed next to the price if the price is known.

(6) A contract must not include in the contract the name of any person other than the holder of a contractor licence as, or so it may reasonably be mistaken to be, the holder's name.

(7) This section does not prevent the holder of a contractor licence with a business name registered under the Business Names Registration Act 2011 of the Commonwealth from also referring in such a contract to the business name.

(8) This section does not apply to:

(a) a contract that is made between parties who each hold a contractor licence and is for work that each party's contractor licence authorises the party to contract to do, or

(b) a contract to do specialist work that is not also residential building work.

71. It was submitted that as both applicant and respondent are properly licenced to perform the work for which they contracted, they were not under an obligation, pursuant to s 7(8)(a), to otherwise comply with the provisions of s 7. Accordingly the painter is not precluded by the operation of s 10 from seeking payment under the terms of the contract.

72. There was no submission from the builder to the contrary and I am satisfied the painter’s submission on the point is quite correct and with the benefit of that submission it is clear that it is a reservation that should not have been raised by the Tribunal.

The painter’s claim in quantum meruit

73. Based on the decision of the High Court in Pavey and Matthews Pty Ltd v Paull [1987] 162 CLR 221 the builder did not dispute the painter’s entitlement to make a claim for payment of a quantum meruit. However, the builder’s submission was that there was no evidence to support such a claim because the evidence of Mr Iscowicz made no allowance for the cost of rectification of any defects.

74. The painter relied on the decision of the New South Wales Court of Appeal in the matter of Renard Constructions (ME) Pty Ltd v Minister for Public Works [1992] 26 NSWLR 234 (Renard) for the proposition that the painter may elect to seek his remedy in quantum meruit or under the contract and the fact that the remedy under a claim in quantum meruit may produce a different amount to that sought under contract law is not an impediment to that election.

75. There was no submission to the contrary.

76. I accept the painter’s proposition that, applying the principles set out in Renard, the painter is entitled to pursue a claim in quantum meruit for a sum representing the reasonable cost of the work he has done and the money he has expended. Any loss of profit does not enter into the calculation of that sum.

The evidence on quantum meruit

77. The painter relied on the expert report of Mr Stephen Iscowicz dated 18 June 2018 and a supplementary report dated 13 September 2018 filed in the proceedings.

78. Mr Iscowicz acknowledged under cross examination that he had not visited the site and had relied on the documents and assumptions referred to in his report, his own analysis of the plans provided to him and his experience.

79. Mr Iscowicz gave sworn evidence that he had been able to calculate from the scope of work set out in the quotation provided by the painter on 20 September 2015, the architectural floor plans provided to him and based on his experience, that the fair and reasonable value of the work to be performed was $27,454 + GST. His report set out the details of his calculation.

80. Mr Iscowicz then relied on some instructions given by the painter’s solicitors to determine the value of incomplete work and deducted that sum from the fair and reasonable value he had calculated in order to determine the value of the work. From that sum was deducted the payments already made to the painter by the builder to arrive at the figure of $16,736.94 (incl GST).

81. Under cross-examination, Mr Iscowicz acknowledged that he had made no allowance in his calculations for any defects as he was unable to do so. He further acknowledged that he was aware that the builder had made a claim of more than $90,000 for allegedly defective work. However, he was unaware of what that work was and, after examining the invoices from Sarab provided by the builder was unable to say that any rectification work had been carried out.

82. For the reasons already stated the builder has been unable to demonstrate that the work was defective as at the date of termination of the contract. No submission was made or evidence provided that indicated the assumptions upon which Mr Iscowicz’ opinions were based were incorrect.

83. Mr Iscowicz is a highly qualified and experienced building expert who regularly provides an opinion to the Tribunal. He has acknowledged the expert witness code of conduct arising under the Tribunal’s Procedural Direction 3 and has agreed to be bound by it.

84. For these reasons I accept Mr Iscowicz’ opinion that the fair and reasonable value of the work done by the painter, after deducting the payments already made to the painter, was $16,736.94.

The claim for payment for extras

85. It is not disputed by the painter that the claim made for payment for variations does not arise under the contract and must therefore also be based on a quantum meruit.

86. Mr Booth gave sworn evidence that he had been asked by the builder to carry out various additional work not included in the quotation provided. There was no response to that evidence from Mr Langlands.

87. Mr Iscowicz, at para [20] et seq of his report of 18 June 2018 set out each of the additional items of work that Mr Booth was required to perform and has calculated the fair and reasonable value of each item. Mr Iscowicz explained carefully, based on his experience, the need for careful preparation in regard to the stairs which were to be treated in a stained finish.

88. There was no evidence that the additional work was not requested or that the fair and reasonable value of the work as calculated by Mr Iscowicz was in any way incorrect.

89. I accept the fair and reasonable value of the additional; work as calculated by Mr Iscowicz was $11,851.95.

Conclusion

90. As the painter’s claim was expressed in the alternative and the election was to seek payment on a quantum meruit basis, it is not necessary to further consider the painter’s claim under the terms of the contract.

91. For the above reasons I am satisfied that the painter is entitled to be paid in total, the sum of $28,588.89 and the builder’s claim is dismissed.

92. The painter’s submissions sought to agitate the issue of costs. If the parties are unable to agree I have made directions to deal with that issue.

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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

Decision last updated: 01 February 2019