BUTLER and PORTER
[2015] WASAT 53
•18 MAY 2015
BUTLER and PORTER [2015] WASAT 53
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 53 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:1648/2014 | 18 FEBRUARY 2015 | |
| Coram: | MR C RAYMOND (SENIOR SESSIONAL MEMBER) MR R TRAVERS (SESSIONAL MEMBER) | 18/05/15 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application successful in part | ||
| B | |||
| PDF Version |
| Parties: | SHIRLEY BUTLER MALCOM PORTER |
Catchwords: | Building Services Registration Act 2011 (WA) Faulty and unsatisfactory building work Whether building constructed to correct contractual dimensions Applicant insisting on monetary compensation Whether applicant in breach of duty to mitigate loss Proper measure of loss |
Legislation: | Building Services Registration Act 2011 (WA) Building Services (Complaint Resolution and Administration) Act 2011 (WA) |
Case References: | Nelson v Mardesic (1998) 22 SR (WA) 42 |
Orders | On the application heard before Senior Sessional Member Clive Raymond it is on 18 May 2015 ordered that:,1. On or before 15 June 2015 the respondent must pay to the applicant the sum of $48,122. |
Summary | The applicant lodged a complaint concerning building work alleged to be faulty and unsatisfactory and alleged that the respondent had failed to construct an extension to her dwelling to the correct dimensions.,The respondent was found by the Tribunal to have not constructed the extension to the correct dimensions. The effect of this was significant in that it resulted in the extension intersecting with the existing building above a sliding door and side panel window which was aesthetically displeasing and raised structural concerns. The Tribunal concluded that the applicant was entitled to insist on compliance with the contract in order to have the building constructed to the correct dimensions. However, the Tribunal accepted the submissions on behalf of the respondent, that by not affording the respondent an opportunity to carry out the remedial work, the applicant had failed to mitigate her loss. In accordance with the principles expressed in Nelson v Mardesic (1998) 22 SR (WA) 42 the Tribunal assessed the applicant's loss on the basis of what it would cost the respondent to carry out the remedial work. An order was made in favour of the applicant for the respondent to pay to her the sum of $48,122. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : BUTLER and PORTER [2015] WASAT 53 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER)
- MR R TRAVERS (SESSIONAL MEMBER)
- Applicant
AND
MALCOM PORTER
Respondent
Catchwords:
Building Services Registration Act 2011 (WA) Faulty and unsatisfactory building work Whether building constructed to correct contractual dimensions Applicant insisting on monetary compensation Whether applicant in breach of duty to mitigate loss Proper measure of loss
Legislation:
Building Services Registration Act 2011 (WA)
Building Services (Complaint Resolution and Administration) Act 2011 (WA)
Result:
Application successful in part
Summary of Tribunal's decision:
The applicant lodged a complaint concerning building work alleged to be faulty and unsatisfactory and alleged that the respondent had failed to construct an extension to her dwelling to the correct dimensions.
The respondent was found by the Tribunal to have not constructed the extension to the correct dimensions. The effect of this was significant in that it resulted in the extension intersecting with the existing building above a sliding door and side panel window which was aesthetically displeasing and raised structural concerns. The Tribunal concluded that the applicant was entitled to insist on compliance with the contract in order to have the building constructed to the correct dimensions. However, the Tribunal accepted the submissions on behalf of the respondent, that by not affording the respondent an opportunity to carry out the remedial work, the applicant had failed to mitigate her loss. In accordance with the principles expressed in Nelson v Mardesic (1998) 22 SR (WA) 42 the Tribunal assessed the applicant's loss on the basis of what it would cost the respondent to carry out the remedial work. An order was made in favour of the applicant for the respondent to pay to her the sum of $48,122.
Category: B
Representation:
Counsel:
Applicant : Mr L James
Respondent : Mr A Searle
Solicitors:
Applicant : Kott Gunning Lawyers
Respondent : Searle Construction Lawyers
Case(s) referred to in decision(s):
Nelson v Mardesic (1998) 22 SR (WA) 42
Introduction
1 On or about 23 August 2012, the applicant, Mrs Shirley Butler, accepted a quotation prepared by the respondent, Mr Malcolm Porter, in which he offered to construct what has been described as an alfresco extension to Mrs Butler's residence at Woodley Farm Drive, Northam.
2 The quotation described the work to be undertaken, and in particular referred to a 'sketch supplied'. The parties are in dispute as to what sketch was attached to the quotation. It is common cause that the parties later entered into a formal lump sum building contract for alteration and additions in the HIA Form and that there were no drawings attached to the contract nor was there any further detailed specification notwithstanding that clause 1 of the contract refers to the builder's agreement to build the work in a proper and workmanlike manner and in accordance with the contract and attached drawings and specifications.
3 Mrs Butler relies on a sketch provided to her by Mr Porter, prior to receipt of the quotation which showed that the extension would be 7.416 metres wide. Mr Porter asserts that he provided Mrs Butler with a second sketch at the time the quotation was presented. The second sketch reflects that the extension is 6.98 metres wide.
4 To add to the confusion, the construction drawings prepared by Mr Porter which were used for the purposes of applying for a building permit showed the width of the extension as being 7.25 metres wide. Mr Porter stated that he had provided a copy of the construction drawings to Mrs Butler but if he did, it was not clear when he did so. Mrs Butler, was adamant that she had never seen the construction drawings, nor the building permit, until well after the dispute had arisen between the parties, being at or about the time when she lodged her complaint with the Building Commission. She advised that she obtained a copy only when another builder, who she had asked to provide a quotation to remedy the defects of which she complained, requested a copy of the approved building plans. Mrs Butler stated that she had received the drawings prepared by Mr Porter's draftsman marked 'not for construction' attached to Mr Porter's affidavit dated 4 February 2015 and marked MP004. This was provided prior to acceptance of the quotation and was discussed with Mr Porter as being the basis upon which she could proceed. This drawing referred to the width of line extension as being 7.25 metres.
5 In the complaint to the Building Commission, a number of matters were raised. These claims were numbered 1 to 16 in an inspection report which was prepared by Inspector de Vos of the Building Commission dated 13 May 2014 (Book of Documents (BOD) page 110). Later additional complaints were made which were identified as complaints A to G.
6 With some exceptions, the parties accepted the recommendations made by Inspector de Vos as incorporated in the proposed building remedy order (BOD page 172) and where they disagreed, in most instances the disagreement falls away if it is found that Mr Porter is bound to provide an extension which is wider than that which he constructed. The extension as constructed is not in accordance with the first sketch, the 'not for construction' drawings or the construction drawings approved by the local authority, but is in conformity with the dimension shown on the second sketch.
7 Mrs Butler contends that she has lost all confidence in Mr Porter and that consequently, she requires all remedial work to be carried out by a competent third party builder. She asserts that this is due to the quality of the workmanship provided and because of Mr Porter's manner in dealing with various issues which arose during construction.
8 Mr Porter disputes that there was any acrimony between himself, Mrs Butler and her husband, and has made it clear that he has always been prepared to carry out whatever remedial work is necessary. Counsel for Mr Porter has contended that if Mrs Butler insists on monetary compensation rather than a remedial work order requiring Mr Porter to carry out the remedial work, she will be in breach of her duty to mitigate her loss, and that, consequently, any monies ordered to be paid should be assessed by reference to what it would cost Mr Porter to carry out any required remedial work.
9 Mrs Butler relies on the evidence of Mr Ian Wallace Gibbs, given to support detailed costings provided by him on 10 December 2014 and 12 January 2015 in documents of that date (BOD pages 227 and 239). Mr Gibbs provided an earlier quotation to carry out the remedial work which he considered to be necessary and is therefore not entirely independent. His experience and competency to give expert evidence was not challenged. His costings were based on the cost of remedying each complaint item and on the assumption that the building would have to be widened to at least the width shown on the approved plans of 7.25 metres.
10 Mr Porter relies on the expert evidence of Mr Richard Machell. Mr Machell has provided a report under the name of his consulting firm, Prescient Consulting, explaining the basis upon which he has carried out an assessment of the costs of remedial work and attaching to it an opinion of the probable cost (OPC) (BOD page 295). The OPC has approached the costings on the basis that no profit has been allowed (assuming that Mr Porter will be given the opportunity to carry out the remedial work), and otherwise, firstly, on the assumption that it is found that the extension needs to be widened, and secondly, on the assumption that the building does not need to be widened.
11 Mr Gibbs' costings total $78,033. Mr Machell's costings, in the event that the building needs to be widened, totals $43,323.80, and if the building does not need to be widened, $16,715.66.
The issues
12 The resolution of the following issues will be determinative of the matter.
1) Has the building been constructed to the correct width in accordance with the contract between the parties?
2) Depending on the answer to 1) what remedial work needs to be undertaken?
3) Has Mrs Butler mitigated her loss by insisting on remedial work being carried out by a third party contractor, rather than Mr Porter?
4) What is the amount of the monetary order to which Mrs Butler is entitled?
Has the building been constructed to the correct width?
13 Mr Porter met with Mrs Butler at her residence on or about 11 August 2012. During this meeting, Mrs Butler explained basically what she required, which was that a rectangular alfresco area be constructed off the 'northern wall' of the existing house. This meant that the roof had to intersect with the existing veranda roof and the roof over the approximate northern side of the house itself. The structure would therefore have to tie into the approximate northern wall of the existing building.
14 Mrs Butler says that the approximate set out of the proposed extension was paced off and she understood that the approximately western side of the extension would intersect with the existing northern wall on the outside of a sliding door and side panel window adjacent to the kitchen.
15 Mr Porter's version is different; he contends that the alfresco area was to come out from between the two existing veranda posts.
16 The two existing veranda posts are 6.88 metres apart from centre to centre, or about 6.97 metres from the outside of each post to the outside of the other, which coincidences with the dimensions reflected in the second sketch.
17 Mr Porter says and we find that he provided a first sketch to Mrs Butler the following day, so that she had a better idea of what was envisaged and could make a decision about whether she wished to proceed or not. This sketch showed that the extension would be constructed to a width of 7.416 metres. It also shows the point of intersection with the approximate northern face of the existing residence as being to the side of the sliding door and side panel window adjacent to the kitchen.
18 Mrs Butler had provided Mr Porter with a copy of the original plans of the house on 11 August 2012. Mr Porter could not explain how the sketch gave the dimensions which it did, other than by suggesting that the dimensions would have been automatically generated by his computer drawing programme. It can be inferred that this would have required the input of the relevant dimensions of the existing house. Mr Porter pointed to a number of those dimensions being incorrect. This does not, however, explain how the sketch shows the point of intersection as being to the side of the sliding door and side panel.
19 The extension has been constructed, as already mentioned, to the dimensions of the second sketch to which Mr Porter referred in his evidence, namely, to a width of 6.98 metres. As constructed, the extension ties into the existing building by way of a large beam above the side panel window of the sliding door.
20 As stated, Mrs Butler's evidence is that she was given the 'not for construction' drawing and that this was what was discussed as the basis for contracting, prior to supplying the formal contract. We accept this as the most probable course to have been followed.
21 It is not explained how the approved drawings and the 'not for construction' drawing reflect a width of 7.250 metres. These plans were prepared by Mr Porter's draftsman based on the original plans. These drawings and the 'not for construction' drawing given to Mrs Butler reflect that the extension intersects with the northern face of the existing house to the side of the side panel window and sliding door concerned.
22 Mrs Butler denies ever having seen the second sketch. She disputes Mr Porter's evidence that it was given to her with the quotation dated 23 August 2012.
23 The quotation provided for a deposit of 6.5% to be provided upon signing of the contract. Mrs Butler's evidence was that the cheque deposit was left with the signed quotation to be collected by Mr Porter from her mailbox. When he failed to collect it, she posted it to him.
24 The confusion which reigns concerning what was agreed to between the parties arises because Mr Porter did not follow the correct procedure in ensuring that a sufficiently detailed plan was attached to the contract when it was subsequently signed by the parties.
25 We accept that there may well have been some misunderstanding between the parties as to the precise dimensions and location of the extension during the course of the discussion on 12 August 2012. However, it is beyond credence to accept that it could ever have been intended that the extension would intersect in the manner as constructed.
26 All witnesses gave evidence before the Tribunal in an acceptable manner. There is nothing in the way in which any witness gave evidence which would cause us to reject that evidence.
27 Mr Porter states that he gave the second sketch to Mrs Butler together with the quotation. Mrs Butler denies having ever been given the sketch and says the contract was conducted based on the 'not for construction' drawing. Both the 'not for construction' drawing and the first sketch showed the extension intersecting to the side of the sliding door and window panel. Mrs Butler said she did not pay particular attention to the dimensions shown.
28 In these circumstances, we are unable to find who therefore bears the practical burden of establishing that, as asserted by Mr Porter, Mrs Butler received the second sketch with the quotation. The language of the quotation insofar as it refers to a sketch 'supplied' is ambiguous and could refer to the first sketch. There would have been no argument if Mr Porter had referred in the quotation to an 'attached' sketch.
29 Mr Porter lodged the 'for construction' drawings with the local authority when applying for the building permit. Those drawings showed that the extension would intersect the existing building to the side of the sliding door and side panel window. He should have been using those drawings when setting out the works and should have realised at an early stage that if he were to use the existing veranda posts to define the point of intersection, there would be a problem, and a problem which would be aesthetically unacceptable, as well as possibly posing structural issues. An engineering report provided by Avon Civil Engineering to Mrs Butler dated 11 October 2013 did, in fact, raise concerns regarding the attachment of key structural members to the existing building.
30 On the evidence before us, the first sketch was before the parties at the time that the quotation of 23 August 2012 was signed. As we can make no finding that the second sketch was then in existence, nor that it had been provided to Mrs Butler, we conclude that the contractual intention of the parties was that the proposed extension would intersect with the new building in accordance with that sketch drawing.
31 We accept that Mrs Butler never sighted the plans as approved by the local authority. She relied on the representation of the works as reflected in the 'not for construction' drawings. That representation is consistent with the approved drawings. The effect of the evidence before the Tribunal is that the extension needs to be widened by approximately 220 millimetres in order to avoid the intersection above the side window to which reference has been made. An increase of width to that extent would effectively result in a structure which conforms to the approved plans and 'not for construction' drawings. In all the circumstances, we therefore find that Mrs Butler is contractually entitled to have the existing structure widened by 220 millimetres to ensure that the extension intersects with the existing buildings as represented in both the first sketch and the 'not for construction' drawings.
What remedial works need to be undertaken
32 Given our finding that the entire structure needs to be widened, the areas of disagreement between the parties as to the extent of remedial work falls away, save, if as we understand the party's respective positions, in one material respect.
33 Mrs Butler's expert witness, Mr Gibbs, has provided costings which include as item 1 the cost of removing and replacing four lines of footings. This is claimed, as we understand Mrs Butler's case, on the basis that it is contended that the footings are inadequate. The building inspector's report to which we have already made reference establishes that at least two footing were of the wrong dimensions and were not in accordance with the approved plans. However, a subsequent engineering report provided to Mrs Butler by Vandon Engineering dated 4 July 2014 establishes that the footings constructed for the alfresco area are approximately 40% bigger in volume than those shown on the approved working drawings. Further, that the constructed footings have a surface area that is at least 45% larger than shown on the approved drawings, thereby reducing the bearing pressure on the underlying soil. The author of this report, Mr Adrian Van Dongen, concluded that the size of the concrete pads are adequate.
34 Mr Porter's expert witness, Mr Machell, has allowed additional footings in order to widen the structure. It can be inferred that he has assumed the existing lines of footings can remain, as there is no costings for their removal. This will be addressed further below in assessing costings.
35 However, for the above reasons, we consider that Mrs Butler is not entitled to any remediation of the existing footings. Otherwise, in all respects and after careful consideration of the Building Commission inspection reports, and the information contained within the proposed building remedy order, we consider that Mrs Butler is entitled to all of the remediation work referred to in Mr Gibbs' costings, other than in respect of the above item 1.
Has Mrs Butler mitigated her loss?
36 Counsel for Mr Porter submits that, by Mrs Butler insisting that a third party contractor carry out any necessary remedial works, she is failing to mitigate her loss: see Nelson v Mardesic (1998) 22 SR (WA) 42 (Nelson). We refer to and adopt the principles discussed in Nelson. The effect of those principles is that if Mrs Butler is acting unreasonably in not affording an opportunity to Mr Porter to carry out the remedial work, she will have failed to mitigate her loss and should therefore only be entitled to recover what it would cost Mr Porter to carry out the necessary works. On the other hand, if it is found that she has not acted unreasonably in insisting that a third party contractor carry out the works, the appropriate measure of her loss would be the reasonable and necessary cost of contracting with a third party contractor to have the work carried out. In this case, the difference in costs is significant. Mr Gibbs' quotation to which we have referred is for a total sum of $80,233. Even after deducting the full costs of $9,735 in respect of item 1 for replacement of all of the footings, his costings total $70,498. Mr Machell's costings covering all of the work referred to in Mr Gibbs' quotation (with an allowance for additional footings to which reference will be made later) total $43,323.80.
37 It is a matter of fact in each case as to whether or not it can be said that an owner is acting unreasonably in not affording the original contractor an opportunity to remedy any necessary works. Usually, the circumstances demonstrate very clearly a complete breakdown in the relationship and loss of confidence.
38 When Mrs Butler gave evidence, she was asked by the Tribunal if she could point to any documentation within the BOD which might serve as a record of behaviour on the part of Mr Porter reflecting a breakdown in the relationship between the parties. Mrs Butler stated that there was nothing in the documentation other than the records of poor workmanship on which she relied for justifying her loss of confidence in Mr Porter. These documents include an engineering report from Avon Civil Engineering, to which we have already referred (BOD page 30), in which Avon Civil Engineering raised concerns regarding the attachment of key structural members to the existing building and the foundation of the new building. Reliance was also placed on photographic evidence (BOD pages 36 to 38). Mrs Porter also referred to a circumstance in which she had raised concerns with Mr Butler about the use of timber bearers because she had understood that steel was to be used. She was unhappy with the way in which Mr Porter dealt with her concerns. This had occurred at an early stage in the project. She said she had no further discussions with Mr Porter because of the animosity which existed between them.
39 As we understand Mrs Butler's evidence, this animosity arose because of the above incident and because, according to Mrs Butler, there had been a number of issues between her husband and Mr Porter.
40 Mr Porter denied that there was any animosity between the parties. He confirmed that Mrs Butler had queried the use of timber bearers and said that he had explained that he had never worked in steel and that the use of timber was entirely appropriate. He said that Mrs Butler greeted him whenever he arrived onsite and that there was no problem with their relationship as far as he was concerned. He wished to have the opportunity to carry out the remedial work.
41 There is no doubt that there are many aspects of the job which were not carried out to an acceptable standard. This is reflected in the Building Commission reports, draft building remedy order and the photographs to which Mrs Butler referred. However, a number of the complaints flow from and are directly related to the error in dimensions. We consider that it cannot be inferred that, because of these deficiencies, Mr Porter lacks the capacity to properly carry out repairs the subject of a Tribunal order. It is one thing for a builder to adopt an attitude, to use a colloquial term, of 'she'll be right' when providing a building service to someone who might be thought to be an uninformed client, and quite another thing for the builder to attempt to get away with unsatisfactory work when required by a Tribunal order, knowing that the work will be closely scrutinised and that a monetary order, likely to have a punitive effect, will follow.
42 When Mrs Butler's husband, Mr Brian Lindsay Butler, gave evidence, he made no reference at all to any issues between himself and Mr Porter.
43 We consider that Mrs Butler's evidence is insufficient to establish that a breakdown of the relationship occurred during the carrying out of the project works.
44 At the conclusion of the hearing, the Tribunal was concerned about the paucity of evidence suggesting a breakdown of the relationship between the parties and, for that reason specifically raised the matter with Mrs Butler's counsel. Mrs Butler was afforded an opportunity to notify the Tribunal if, on reflection and upon advice from her legal practitioner, she wished to seek a remedial work order and avoid the risk of an award which would be insufficient for her to engage a third party contractor. The Tribunal was subsequently advised by letter dated 24 February 2015 from Mrs Butler's legal representatives that she wished to persist with her claim for a compensatory money payment. The letter conveyed Mrs Butler's sole desire to obtain a financial settlement so that this matter with Mr Porter is entirely concluded. That may be desirable from her perspective, but we are not satisfied on the evidence that Mr Porter lacks the capacity to properly do the job or that there is a reasonable basis for Mrs Butler to regard the relationship as broken down to the extent that it would not be feasible to work with him.
45 In the circumstances to which we have referred, we find that Mrs Butler is acting unreasonably in not affording Mr Porter an opportunity to remedy the defective work, and in so doing, has failed to mitigate her loss. Consequently, the appropriate measure of that loss will be the cost to Mr Porter of carrying out the remedial work.
The amount of compensation
46 A detailed breakdown of Mr Gibbs' quotation appears at page 239 of the BOD and following. The total amount of the quotation is for an amount of $78,033. Mr Gibbs gave evidence that the costings allowed for a profit of 30% on labour and 40% on materials. As reflected in the quotation, the price included GST.
47 Mr Machell's costings do not include any allowance for profit and nor is GST included, as the costings were prepared on the assumption that any order in favour of Mrs Butler would be based on the cost of Mr Porter carrying out the remedial work. Analysis of Mr Gibbs' costings and the costs allowed by Mr Machell demonstrate that Mr Gibbs' costings are reasonable. Indeed, our conclusion on costings, as outlined below, shows that there is only a difference of approximately $5,000 between their respective costings, once Mr Gibbs' costings are adjusted to exclude GST and profit, and are further adjusted in respect of claim item 1 in respect of the footings. Subject to these adjustments, we prefer to rely on Mr Gibbs' costings because he has been onsite on a number of occasions and his prices reflect the amount at which he, as a contractor, would be prepared to carry out the work. Mr Machell has not been onsite. In addition, Mrs Butler obtained two other quotations, one of which provided a costing expressed to be between $100,000 and $110,000, and the other being for $79,850 plus GST (BOD pages 24 and 25). Both of these estimates are therefore significantly in excess of Mr Gibbs quotation.
48 In respect of item 1, for the reasons given above, there is now engineering evidence that the footings provided exceed the requirements of the approved plans (see the Van Dongen report dated 4 July 2014, BOD (page 107). Mr Gibbs', quotation allows a total of $9,735 for this item, based on the removal and replacement of four lines of footings. This work is obviously unnecessary. Mr Machell has only allowed for additional footings to accommodate the widening of the structure in a total sum of $640, covering additional stirrups, fixings and concrete. This sum, as stated, does not include GST or any profit component. In relation to item 1, we find that Mrs Butler is entitled to payment of $640.
49 In relation to all remaining items, we find Mrs Butler is entitled to the costs allocated by Mr Gibbs, but subject to adjustment to remove the profit component and GST which have been included. The profit component needs to be removed because the costs allowed need to be assessed on the basis of what it would cost Mr Porter to carry out the work. The GST needs to be removed because, while Mr Porter will pay GST on his purchases, he will be bearing the cost of the remedial work and is not providing a service to another on which GST is payable.
50 Mr Gibbs has broken down the labour and material costs in respect of each item as set out in his letter of 12 January 2015 (BOD page 233). Excluding item 1, the total labour costs amount to $34,108. In his evidence, he indicated that he had allowed a 30% mark up on labour. His quote reflects that he had allowed 40% on materials. He conceded in his evidence that he would regard 30% mark up on materials as reasonable, but as he has charged 40% on materials, the adjustment must be based on that percentage mark up.
51 Insofar as the labour is concerned, the calculation is therefore as follows:
$34,108 x 100 ÷ 110 x 100 ÷ 130 = $23,852.
52 Insofar as materials are concerned, the total cost reflected in the breakdown, excluding item 1, is $36,390. As stated above, this figure includes GST and a 40% profit mark up. In order to deduct the GST and profit factor, the calculation is therefore as follows:
$36,390 x 100 ÷ 110 x 100 ÷ 140 = $23,630.
53 The total labour and material costs, excluding item 1, to which Mrs Porter is therefore entitled is as follows:
$23,852 + $23,630 = $47,482.
54 It is necessary to add the amount to which Mrs Butler is entitled in respect of item 1, which does not include profit or GST of $640. The total amount to which Mrs Butler is therefore entitled is $48,122.
Conclusion
55 For the above reasons, we find that Mrs Butler is entitled to insist on the widening of the structure to achieve conformity with the contract and to the remedying of faulty and unsatisfactory workmanship. However, we find that Mrs Butler has failed to mitigate her loss by not affording Mr Porter the opportunity to carry out the remedial work pursuant to a remedial work order issued by the Tribunal. Consequently, her loss is assessed on the basis of what it would cost Mr Porter to carry out the remedial work, which amount we have assessed in the sum of $48,122.
56 The Tribunal will cause an order to issue as follows.
Orders
1. On or before 15 June 2015 the respondent must pay to the applicant the sum of $48,122.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR SESSIONAL MEMBER
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