Bryant v Slaven; Slaven v Bryant

[2020] NSWCATCD 27

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bryant v Slaven; Slaven v Bryant [2020] NSWCATCD 27

Hearing dates:

10 and 11 October 2019

Date of orders:

24 January 2020

Decision date:

24 January 2020

Jurisdiction:

Consumer and Commercial Division

Before:

L Wilson, Senior Member

Decision:

In HB18/39732:

Application dismissed

In HB18/47788:

Darrell Slaven must pay Emma Bryant and Todd Bryant the sum of $42,913.47 immediately.

In both applications:

If Mr and Mrs Bryant wish to have a cost order different to the one proposed in paragraph 73, they must make a cost application on or before 18 February 2020.

If Mr Slaven receives a cost order from the Bryants, he may provide his submissions and any evidence in response to that cost application by 10 March 2020. These submissions must be filed with the Tribunal and served upon the other party.

Catchwords:

BUILDING AND CONSTRUCTION — Home Building — Oral contract — Quantum meruit — Claiming more than the contract amount — Residential shed — Defects

Legislation Cited:

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Domestic Building Contracts Act 1995 (Vic)

Home Building Act 1989 (NSW)

Cases Cited:

Bellgrove v Eldridge [1954] HCA 36

County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA193

Lodder v Slowey [1904] AC 442

Mann v Paterson Constructions Pty Ltd [2019] HCA 32

McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457

Pavey v Matthews [1987] HCA 5; Florida Kitchens Pty Ltd v No. 1 Cutting Service Pty Ltd [2018] NSWCATAP 281

Texts Cited:

Nil

Category:

Principal judgment

Parties:

In HB18/39732:
Darrell James Slaven (Applicant)
Emma Louise Bryant (First Respondent)
Todd James Bryant (Second Respondent)

In HB18/47788:
Emma Louise Bryant (First Applicant)
Todd James Bryant (Second Applicant)
Darrell James Slaven (Respondent)

Representation:

In HB18/39732:
Applicant (Self-represented)
Counsel:
D Neggo (First and Second Respondent)
Solicitors:
WMB Lawyers (First and Second Respondent)

In HB18/47788:
Respodent (Self-represented)
Counsel:
D Neggo (First and Second Applicant)
Solicitors:
WMB Lawyers (First and Second Applicant)

File Number(s):

HB18/39732 and HB18/47788

Publication restriction:

Nil

REASONS FOR DECISION

1. This is the decision for two related claims between the same parties. Mr Slaven commenced his application first, claiming compensation for defective building work from Mr and Mrs Bryant who operate a partnership with the trading name Bryant Constructions. Two months later the Bryants commenced the second claim against Mr Slaven which seeks payment of $65,000 for the fair and reasonable cost of the building works performed, on a quantum meruit basis.

2. For ease the Tribunal will refer to the Bryants as the Builder. Mr Slaven was the contracting party for the building, the subject of these proceedings, but he is not the land owner. Therefore he will be referred to by his name not a nomenclature.

3. The building works were performed pursuant to an oral contract, which is a breach of the Home Building Act 1989 (NSW) (the Act). The background to these disputes includes that the parties were, at the time of entering the oral contract, old friends. They are no longer friends.

4. Mr Slaven claims either of these remedies:

1. repayment of $18,530.58 and relief from paying $45,052.47; or

2. if the Builder is entitled to be paid on a quantum meruit basis: balance owning to Builder $2,889.22 less cost of rectifying defects $34,881 which comes to $31,991.78 in Mr Slaven’s favour.

Evidence

5. The hearing took place in Albury over two days. Evidence in one proceeding was evidence in the other. All evidence was contained in the Court Book tendered by the Builder, other than page 226, paragraph 50 on page 223, paragraph 18 on page 547 and paragraphs 1 (a) and (b) on page 239 were removed after objections. References to the Court Book are CB followed by the page number.

6. Seven witnesses were cross examined. They were: Mr Slaven, Mr Byrant, Mr Nixon, the Builder’s expert Mr Phegan, Mr Hoey, Mr Crick and Mr Boyton.

7. The Tribunal took account of the evidence and extensive oral and written submissions. The Tribunal ensured Mr Slaven understood the practice and procedure in accordance with s.38(5) of the Civil and Administrative Tribunal Act 2013 (NSW).

Issues

8. Are these applications building claims as defined in s.48A? In particular, is the shed a dwelling (defined in cl.3 Sch 1 of the Act)?

9. Is the Builder entitled to be paid for the works on a quantum meruit basis? If yes, what is the fair and reasonable remuneration for the works.

10. Were the bathroom walls inside the shed constructed in breach of contract, negligently and/or in breach of s.18B(1)(a) of the Act? If yes, what is the appropriate remedy?

11. Did the Builder fail to carry out the works particularised in paragraph 19 of Mr Slaven’s Points of Claim in a proper and workmanlike manner, leaving defects in the construction? If yes, what order should be made to remedy those defects?

Facts

12. In finding the facts set out below, the Tribunal has had to consider competing evidence on several matters. In assessing which version the Tribunal accepts, the Tribunal has had regard to the totality of the evidence, considered whether the assertions in the parties’ statements accord with other witnesses recollections and the documents contained in the court bundle (CB), and whether the assertions stood up to challenge in cross examination. In Mr Slaven’s case, his statements were often contrary to the objective facts such as his claim that the council would not give him an occupation certificate because of defects when in fact the email from council said no such thing: cf CB223 para 51 with email CB227 -228. They were also contrary to his own oral evidence, such as claiming that he was on site for the council inspection not to participate in the inspection (as per CB45 para 55) but only to feed his horse.

13. Mr Slaven was a less impressive witness than Mr Bryant. The Tribunal found Mr Slaven’s oral evidence to be evasive, inconsistent, vague and at times defensive. The Tribunal appreciates that cross examination can be stressful, that Mr Slaven has a vested interest in the outcome of the proceedings and may be hurt by the collapse of his friendship with Mr Bryant, but all these factors apply equally to Mr Bryant, who was not as unreliable in the witness box as Mr Slaven. For example when asked about the council inspection, which Mr Slaven claimed he did not attend but was only coincidentally on site to feed his horses, he became quite worked up, giving long, irrelevant answers and waving his hands about. He claimed he did not know what formwork was or get involved in it, to the extent the Member had to clarify with him that he did know the difference between 1 metre and 2.5 metres.

14. There were inconsistencies between Mr Slaven’s statements and his oral evidence, and when these inconsistencies arose Mr Slaven did not own them but tried to explain his way out of them, which was often confusing and led the Tribunal to assess his evidence as less credible than Mr Bryant’s. For example in paragraph 25 of his statement (CB39) which he had earlier adopted under his affirmation (although somewhat vaguely), he wrote “Todd assisted me by liaising with Best sheds”. During cross examination he admitted he did not know if Best Sheds ever called the Builder, then he refused to admit that paragraph 25 was wrong, and tried to explain how his statement and oral evidence could both be true. Mr Slaven was also challenged on his assertion that the Builder had agreed, between October 2017 and January 2018 (Points of Claim [4(a)]) to erect the shed for $24,000. He claimed this conversation, in which the Builder agreed to do the works for that lump sum, was prior to receiving the plans for the shed from Best Sheds: CB73ff. He agreed that prior to receiving the email on 16 January 2018 that the Builder (and indeed himself) did not know the plans for the shed. He gave nonsensical answers to direct questions for example that the Builder could not give a price for the works without seeing the plans for the shed and knowing the fit out required. He claimed the Builder could because he had a brochure and knew the size of the proposed shed. The Tribunal does not accept this evidence and prefers the evidence of Mr Bryant who denies the Builder ever fixed a lump sum price for erecting the shed, and certainly could not have given a lump sum prior to knowing the plans. The oral evidence from Mr Slaven about add ons being added to the lump sum was also nonsensical and gave the Tribunal the impression that he was not a credible or reliable witness.

15. Mr Bryant on the other hand gave oral evidence that was consistent with his affidavits, and consistent with objective materials such as emails and plans. He answered the questions directly and did not appear to tailor his answers to try to present his case in the best light. Despite the fact he was being cross examined by Mr Slaven directly, Mr Bryant answered questions honestly and directly.

16. The land on which the shed was constructed was at all material times owned by Mr Slaven’s parents.

17. Mr Bryant and Mr Slaven had been friends for almost 20 years when this dispute arose. In about early to mid-2017 Mr Slaven approached Mr Bryant to discuss an idea he had to build a house on his parents’ property. Mr Slaven did not consider obtaining quotations from any other builder because he trusted Mr Bryant and believed he was “a good honest friend”: CB37, para 11.

18. During these 2017 discussions, the idea was that Mr Slaven’s parents would reside in the house. Ideas were emailed to Graham Nixon at Coota Design, Building Designers in Cootamundra: CB285, paras 11 – 12.

19. On 18 July 2017 Mr Bryant, Mr Slaven and Mr Bruce Roberts who operates Roberts Bobcat Excavator & tipper Hire, attended the site. The three men discussed the excavation and earthmoving work required to prepare the site for construction of the house and other structures and they decided to proceed. Over the next three hours the men watched and checked the excavation work being done: CB286, paras 17 – 20.

20. Roberts charged the Builder $1,089 for that excavation work and the Builder has paid it: CB307. That was the only work done by the Builder for Mr Slaven’s proposed house. All other work was for the shed.

21. In about September 2017 Mr Slaven told the Builder, among other ideas, that he was considering putting a shed “up the back of the site”: CB287, para 29. From that time Mr Slaven started emailing the Builder quotations for sheds: CB287, para 30.

22. On 15 January 2018 Mr Slaven purchased a shed building kit from Best Sheds. The Tribunal finds that Mr Slaven alone corresponded with Best Sheds about this purchase and it is agreed he paid for it.

23. The contract between the parties to build the shed was oral. The Tribunal does not accept that a term of that oral contract was that the Builder would build the shed for $24,000. Mr Slaven’s evidence about this amount is unpersuasive and also contrary to other evidence. For example the figure seems to come from the Shed Development Application which Mr Slaven alone completed and submitted; the Builder had no input into it. Mr Slaven submitted it on 26 April 2018 and approval was given for a storage shed only (that is not for residential occupation) on 4 May 2018: CB622, CB636, CB666. Mr Slaven alleged that the $24,000 amount was agreed between the parties once he confirmed the shed he would be erecting at the property: paragraph 26, CB39. That was in mid-January 2018 at which time the Tribunal finds the Builder was not aware Mr Slaven wanted the shed to live in. At that time the Builder did not know what the fit out would be. The Council quotation that is at CB65 was prepared by the Council on the basis of the Shed Development Application, that is where the $24,000 figure came from on that document, not from the Builder: cf paragraph 28 CB39. Further on 17 June 2018 Mr Slaven received the first three invoices for the work on the shed, those coming to $32,617.98 which he paid. He claims to have been “shocked and concerned” with the cost of the shed, which was then incomplete and on his account already 35% more than the total price he alleged they had agreed upon. Yet Mr Slaven paid it, and made no comment at the time, or in the following weeks or months, about the apparent overpayment. He did not even mention this alleged lump sum figure in the email terminating the contract: CB190. Evidence of that “post-contractual” conduct is admissible on the question of the identification of the terms of an oral agreement: County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA193; Builder’s submissions para 33.

24. The Tribunal accepts the Builder’s contention that the oral agreement was formed in about mid April 2018 when Mr Byrant said to Mr Slaven “I will help you build the shed where needed”: paragraph 39, CB288. The Tribunal accepts that the terms of the oral contract included that Mr Slaven would pay the Builder on a ‘do and charge’ or ‘cost plus’ basis.

25. The Builder accepts this was a breach of the Home Building Act which disentitled it to damages in respect of breaches of the contract: s.10 Home Building Act, Builder’s submissions para 44.

26. On 30 January 2018 the Builder and Mr Slaven met again to discuss some updated plans for the site. This included the idea of building the shed: CB287, paras 31 – 34. Mr Slaven said “We need to work on finalising the plans for house … and get everything through Council then the shed will come after that”. The Builder then emailed the updated plans for the house to Graham Nixon at Coota Design to be drawn up for approval by Council: CB288, para 36.

27. The Tribunal accepts that the Builder was at all times more interested in constructing the house and the shed was a secondary project to the house. The Builder was involved in obtaining the documents to be submitted for the house, but not for the shed. The house development application was submitted on 16 March 2018 and estimated the cost of construction to be $258,878: CB562. It was approved on 23 March 2018 and it did not contain any approval for a shed: CB581 and 596 – 597.

28. At about this time, the Builder received a phone call from Council informing him that a separate development application was required for a shed on the property. Mr Bryant passed on his information to Mr Slaven and thereafter the Builder had no involvement in the shed development application which Mr Slaven lodged on 26 April 2018: CB458, CB621.

29. In about mid-April 2018 Mr Slaven said to Mr Bryant that he wanted the shed to be constructed as soon as possible. The Builder agreed to “help you build the shed where needed”: CB288, para 39. There was never a written contract about this work.

30. Mr and Mrs Bryant were on holiday interstate from 14 April to 14 June 2018. Whilst on leave Mr Bryant was in regular contact about the construction of the shed with two of the Builder’s employees, Mr Boyton and Mr Crick, as well as with the Builder’s concreting subcontractor Mr Hoey and Mr Slaven: CB288, paras 43 – 44.

31. On about 30 April 2018 the Builder arranged for the homeowners warranty insurance it had previously arrange for the construction of the house, to be extended to the include the construction of the shed: CB331. The premium was paid by the Builder.

32. On 4 May 2018 Council approved the shed development application and issued a construction certificate to build it.

33. On 24 May 2018, the Builder’s employees Crick and Boyton met Mr Slaven on site to discuss the location of the shed, the shed sewer drainage and a start date for erecting the shed. This meeting was arranged by Mr Bryant.

34. Between May and August 2018, the Builder carried out construction work on the 20m x 7.5m shed. Mr Slaven paid the Builder $32,617 for that building work.

35. In paragraph 130 of his statement (CB56) Mr Slaven sets out a list of payments he made. Only some of those were said to have been paid to the Builder. Of those, the first ($1.289) was for the earthworks for the house, not the shed. The next, the $2,500 alleged cash payment is not accepted by the Tribunal to have been made. The Tribunal does not accept the parties had an agreement that the Builder would erect a retaining wall for Mr Slaven for $2,500 cash: Bryant’s affidavit paragraph 10, CB456. Even if the Tribunal had accepted that agreement it was not part of the shed works. The next payment ($3,409.36) were architect and insurance fees for the house, not the shed: Bryant’s affidavit paragraph 14, CB457. The next payment ($5,783) was the council fee for the House Development Application which expressly excluded the shed. The next payment was made to the Builder for the shed but was $32,617.98 not the $34,032.58 claimed in Mr Slaven’s statement. It was the total of invoices 1452, 1481 and 1495: see Mr Slaven’s statement paragraph 72 at CB47 and CB460-408. The remaining amounts were paid by Mr Slaven to third party contractors and not the Builder and therefore are not amounts Mr Slaven paid the Builder for work on the shed.

36. The work performed by the Builder pursuant to the oral contract was detailed in Mr Bryant’s affidavit in paragraphs 48 to 167 (CB289 to CB303) and the Tribunal accepts that all the work there described was undertaken by the Builder at the request of Mr Slaven.

37. In August 2018 the parties started to disagree.

38. On 24 August 2018 Mr Slaven sent the Builder an email which terminated the agreement between them: CB190. As the contract was a cost plus contract (or do and charge) the date of termination was 24 August 2018. The Builder did no further work after 24 August 2018.

39. From 17 June 2018 to 14 August 2018 the Builder rendered invoices for the work on the shed that totalled $75,531.45, of which $32,617.98 has been paid leaving $42,913.47 outstanding: paragraph 173, CB303; CB407 – 412. Invoice 1554 (CB412) was for the last of the work performed by the Builder for Mr Slaven; the last time the Builder did work for Mr Slaven was on 3 August 2018 (CB302) and this work was included in that final invoice .

Resolution of the issues

Are these applications building claims

40. Yes; both claims meet the definition in s.48A of the Act. In particular the work was residential building work as defined in cl. 2(1) of Sch.1 of the Act.

41. The shed was built on Mr Slaven’s parents’ property, which also had a house on it. Therefore, when the oral contract was entered and construction work begun, the shed met the definition of ‘dwelling’ as it was a shed that was being “constructed for use in conjunction with a dwelling”: cl.2 in Sch. 1 of the Act. However later, when it became known to the Builder that Mr Slaven wanted to live in the shed, it was a dwelling defined in cl.3(1) of Sch. 1 of the Act, namely “a building or portion of a building that is designed, constructed or adapted for use as a residence”.

42. The Tribunal therefore finds that it has jurisdiction to hear and determine these building claims. Both were lodged within time, are under the jurisdictional limit, and are seeking the payment of a specified sum of money: ss.48A, 48K and 48O of the Act.

Is the Builder entitled to be paid for the works on a quantum meruit basis? If yes, what is the fair and reasonable remuneration for the works

43. In circumstances, as here, where the Home Building Act prevents a builder who has carried out residential building work from recovering under a contract in respect of that work, provided the party sued in respect of the building work has asked for and received the benefit of the work, it is appropriate to award, by way of restitution or on a quantum meruit, the fair and reasonable value of the work: Pavey v Matthews [1987] HCA 5; Florida Kitchens Pty Ltd v No. 1 Cutting Service Pty Ltd [2018] NSWCATAP 281; Builder’s submissions para 45.

43. The Tribunal accepts that Mr Slaven derived a benefit for the residential building work performed by the Builder for him under his instruction, as he now resides in the shed. During cross examination he explained he has other homes in which he sometimes resides but it is an uncontested fact that he lives in the shed at least some of the time, if not the majority.

44. The Builder’s expert assessed the fair and reasonable value of the work at $98,426: CB419. Mr Slaven’s expert assessed the fair and reasonable value of the work at $55,902: CB 245.

45. The Builder invoiced Mr Slaven $75,531.45 for this work, which it says has a value of $98,426.

46. The day before the hearing of this case, the High Court handed down Mann v Paterson Constructions Pty Ltd [2019] HCA 32. It was an appeal from the Court of Appeal of the Supreme Court of Victoria, and concerned remuneration for work done under a contract to which the Domestic Building Contracts Act 1995 (Vic) applied. The builder in that case had brought a claim in VCAT for damages for breach of contract or, alternatively, restitution for work and labour done and materials supplied on a quantum meruit basis (meaning the ‘reasonable value of work performed’): [1], [5], [135].

47. Chief Justice Kiefel and Bell and Keane JJ noted the builder’s claim for restitution was based on a Privy Council case, Lodder v Slowey [1904] AC 442, previously applied by a number of Australian intermediate appellate courts: [5]. Their Honours found that Lodder v Slowey should no longer be applied, given its reliance on the ‘rescission fallacy’; the notion that, when a contract is repudiated and the repudiation accepted, the contract is rescinded ‘ab initio’, and a plaintiff is entitled to recover restitution for the reasonable value of services regardless of the contract price (or any other terms of the contract): [5]-[6], [50]. Their Honours found this principle to be inconsistent with the High Court’s previous finding in McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 at 476-477 (cited at [9]), where Dixon J (Rich and McTiernan JJ agreeing) said:

‘When a party to a simple contract, upon a breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected […] [W]hen a contract, which is not void or voidable at law, or liable to be set aside in equity, is dissolved at the election of one party because the other has not observed an essential condition or has committed a breach going to its root, the contract is determined so far as it is executory only and the party in default is liable for damages for its breach.’

49. In this case the contract was terminated by Mr Slaven and the Builder accepted that termination, it was not on of the basis of repuditation. As a cost plus contract, the Tribunal finds that either party could elect to no longer be bound by the contract and the contract would come to an end upon that election (or termination).

50. Importantly, the High Court held that the builder’s rights to be paid some instalments of the contract price had accrued before the contract was terminated and, although the Builder was entitled to be paid those instalments for that work, it was not entitled to claim greater payments by way of a restitutionary claim for quantum meruit: at [27]. The High Court held at [215] (emphasis added):

As has been seen, the decision of the Supreme Court of the United Kingdom in Benedetti did not go so far as to make the contract price the limit of restitutionary recovery. Although supportive of the conclusion that the amount to be allowed by way of restitution should not ordinarily exceed the contract price, it leaves open the possibility of exception. It is appropriate that this Court adopt a similar approach. It is consistent with the Australian understanding of restitutionary remedies that a contract, although discharged, should inform the content of the defendant's obligation in conscience to make restitution where the failed basis upon which the work and labour was performed was the contractor's right to complete the performance and earn the price according to the terms of the contract. It is, therefore, appropriate to recognise that, where an entire obligation (or entire divisible stage of a contract) for work and labour (such as, for example, an entire obligation under or an obligation under a divisible stage of a domestic building contract) is terminated by the plaintiff upon the plaintiff's acceptance of the defendant's repudiation of the contract, the amount of restitution recoverable as upon a quantum meruit by the plaintiff for work performed as part of the entire obligation (or as part of the entire divisible stage of the contract) should prima facie not exceed a fair value calculated in accordance with the contract price or appropriate part of the contract price.

51. Applying the High Court decision which is binding upon the Tribunal, the Tribunal finds that the amount of restitution recoverable as upon a quantum meruit by the Builder for the work it performed under the oral agreement to erect and fit out Mr Slaven’s shed, should not exceed a fair value calculated in accordance with the contract price which was set out in the invoices at pages 403 to 412 and come to $75,531.45. Despite being bound by the High Court, the Tribunal finds that the invoiced amounts are the fair and reasonable value of the work, calculated by the Builder prior to this litigation being contemplated, on the basis of the cost plus oral contract between the parties. The reason the Builder cannot sue in contract is because it did not comply with the Home Building Act. It is a perverse outcome, which the Tribunal accepts has been the position for some time prior Mann v Paterson, that a builder who acts contrary to the law can benefit from that breach by claiming more than it could had it complied with the law.

52. That leaves $42,913.47 that Mr Slaven must pay the Builder.

Were the bathroom walls inside the shed constructed in breach of contract, negligently and/or in breach of s.18B(1)(a) of the Act? If yes, what is the appropriate remedy?

53. The Shed Development Application contemplated a bathroom which was 3m by 3m: CB636. The “as-built” bathroom is 3.55m by 2.46m: CB511B.

54. The Tribunal accepts that Mr Hoey, a builder working on behalf of the Builder, had a discussion with Mr Slaven on site concerning the location of the bathroom walls and the benefits which would result from changing the dimensions of the bathroom: CB502. In particular, without changing the dimensions, the walk in area of the walk-in wardrobe would have been about 30cm (CB508) and may have been difficult to include a washing machine and wash tub (which were not included in the original plan but desired by Mr Slaven and added later). Mr Hoey chalked out alternative locations for the bathroom walls to improve those issues with the existing dimensions and Mr Slaven approved the alternative placing of the bathroom walls based upon the chalk marks: CB502 and CB503.

55. Mr Slaven’s inconsistent and unreliable oral evidence that this conversation did not occur is not accepted. Mr Slaven required Mr Hoey for cross examination but did not put to him that the conversation he set out in his statement was not true. Instead Mr Slaven asked Mr Hoey “How long did you know you were doing that job before it started?”

56. Mr Slaven’s expert did not attend for the purpose of cross examination and therefore his report is given less weight than the Builder’s expert report. In any event Mr Burton’s report is of no assistance in determining whether these bathroom walls are a defect, as he was instructed to assume the defect and express his expert opinion on the cost of repositioning the walls as per the Council approval plan: CB238, CB239.

57. There is no evidence to support Mr Slaven’s contention that the walls as built has caused him any issues with the local Council.

58. The walls as built were as per Mr Slaven’s instructions and he must pay the fair and reasonable value of those works for which he received benefit. There is nothing defective about the way the walls have been built. Even if the location of the bathroom walls as built were found to be a defect, which they are not, the Tribunal would not order that they be rebuilt as that would not be a reasonable course to adopt (Bellgrove v Eldridge [1954] HCA 36) as the location of the walls as built is better than the location proposed in the original plans.

Did the Builder fail to carry out the works particularised in paragraph 19 of Mr Slaven’s Points of Claim in a proper and workmanlike manner leaving defects in the construction? If yes, what order should be made to remedy those defects?

59. Paragraph 19 of the Points of Claim alleged;

In carrying out the works, the Builder failed to carry out certain works in a proper and workman like manner leaving defects in the construction:

Particulars of defects

(a) defects around windows;

(b) western red cedar lining boards not installed correctly;

(c) flashing internal wall to bedroom not installed correctly;

(d) defects in skirting;

(e) defects in cornice joints

(f) defects in down pipes; and

(g) defects in gutter joins.

60. Nothing falls on Mr Slaven’s use of the now out-dated terminology “proper and workmanlike”. The Tribunal is not a court of strict pleading and appreciates that Mr Slaven means that the particularised defects were not done with due care and skill and are therefore in breach of the statutory warranty in s.18B(1)(a) of the Act.

61. There is no evidence in support of these alleged defects. Mr Burton’s evidence deals only with costings and assumes that the items are all defective. The report relied upon by Mr Slaven to prove these listed defects is an email from James Smith, Construction Manager, to Mr Slaven: CB172-184. The email is only photographs with minimal descriptions. The Builder’s submission that it “lacks detail and reasoning, and is entirely unpersuasive” is generous: paragraph 56. The Tribunal places no weight upon this email. Mr Slaven’s claim exceeds $30,000 therefore Procedural Direction 3 applies to it and accordingly any expert should comply with the Expert Code of Conduct. Not only does this email not mention the Code of Conduct, the author does not even set out his qualifications, if any, or any basis for the findings (which are cursory at best). An important aspect of the Code of Conduct is that the ‘expert’ be impartial. The email commences “Hey mate”, giving an impression that the author is not impartial. But in any event, the author of the email has given no evidence that he is suitably qualified to express (the very limited) opinions he has expressed and the Tribunal would make no findings based on this email.

62. The Tribunal has regard to the Builder’s expert report which was done by a suitably qualified expert (CB447-450) and concluded that “the work done in erecting the shed and the residence area are to a high standard and completed in a tradesman like manner”: CB417.

63. The Tribunal accepts the Builder’s submission that, to the extent the email included incomplete works (as opposed to defective works) that cannot be taken into account as the contract was terminated before the works were completed.

64. Mr Slaven’s defects claim fails.

Final comments

65. There is no monetary claim by Mr Slaven referable to the complaints he has made, repeatedly, about the position of the shed. Nor could there be as he is not the owner of the land and there is no evidence the land could not still be subdivided.

66. However because Mr Slaven expressed his displeasure with the location of the shed the Tribunal will make some short remarks to ensure the parties are aware that the Tribunal heard those remarks and why they cannot form part of Mr Slaven’s claim.

67. Mr Slaven inspected the proposed position for the slab twice before it was poured. The first time was 24 May 2018 with Mr Crick and My Boyton: CB452 and CB518 and CB537. Their evidence, both in their statements and oral evidence, was clear on this point and accepted by the Tribunal. On this occasion Mr Slaven approved the position of the slab.

68. The second time was on 30 May 2018 with the council inspector: CB45. The council approved the position of the slab and Mr Slaven did not raise an objection to its approval: CB170.

69. While Mr Slaven, for reasons unknown as the slab position is not part of his claim against the Builder, tried to change his evidence from attending site on these two occasions and explaining he was only coincidently there to feed his horses, the Tribunal does not accept his version of events, even if the slab position had been part of his claim.

Costs

70. Mr Slaven had been represented by a solicitor however by the time of the hearing he was self-represented. Nonetheless it is an unfortunate fact that both parties have spent more on legal fees than they are claiming from the other side. This issue was raised with the parties by the Tribunal in the 3 June 2019 directions hearing conducted by Principal Member Rosser, and the presiding Member at the final hearing raised the issue at the outset of the hearing.

71. Parties are to address in their application for costs, or submissions responding to an application for costs, their attitude to the Tribunal dispensing with a further hearing on costs and determining the issue on the papers.

72. Parties must also include in their cost application or submissions, any evidence (for example Calderbank offers) that they rely upon.

73. Both claims were over $30,000 and therefore the usual order for costs would be that Mr Slaven must pay the Builder’s costs of both applications, as agreed or assessed. Only if the Builder seeks an order different to that must it make an application for costs. If no cost application is received by either party by 18 February 2020, the Tribunal will issue an order that Mr Slaven pay the legal costs of the Builder for both applications, on an ordinary basis, as agreed or assessed, pursuant to Rule 38 of the Civil and Administrative Tribunal Rules 2014.

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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: 29 March 2022