Chouhan v Morrison Homes Pty Ltd

[2021] NSWCATCD 155

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chouhan v Morrison Homes Pty Ltd [2021] NSWCATCD 155

Hearing dates:

6 September 2021

Date of orders:

31 December 2021

Decision date:

31 December 2021

Jurisdiction:

Consumer and Commercial Division

Before:

D Goldstein, Senior Member

Decision:

1. Morrison Homes Pty Ltd must pay Preet Chouhan and Harjinder Chouhan $1,500.00 immediately.

2. Not later than 28 February 2022, Morrison Homes Pty Ltd must carry out the work referred to in [143] of the Reasons in accordance with the requirements of that paragraph.

3. Preet Chouhan and Harjinder Chouhan have leave to renew these proceedings if Morrison Homes Pty Ltd has not complied with order 2 by the time stated in that order.

4. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.

5. The costs respondent will have 14 days after the date it or he receives the application to lodge in the Tribunal and serve on the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

6. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

7. Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

Catchwords:

BUILDING and CONSTRUCTION – Defects – Expert evidence

Legislation Cited:

Home Building Act 1989 (NSW)

Cases Cited:

Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185

Hislop v Jakanda Pty Limited [2019] NSWCATCD

MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Preet Chouhan (First Applicant)
Harjinder Chouhan (Second Applicant)
Morrison Homes Pty Ltd (Respondent)

Representation:

First Applicant (Self-represented)
Second Applicant (Self-represented)
Respondent (Self-represented)

File Number(s):

HB 21/12297

Publication restriction:

Nil

REASONS FOR DECISION

1. These proceedings arise as a consequence of work done by the respondent for the applicants under a HIA NSW Residential Building Contract for New Dwellings signed by the parties on 7 March 2018. The respondent’s expert states that the owners took possession of the residence constructed by the respondent on 20 December 2019.

2. In these reasons I will refer to the applicants as the owners and to the respondent as the builder.

3. There was no submission made that the Tribunal did not possess the necessary jurisdiction to hear and determine these proceedings pursuant to the Home Building Act 1989 (‘the Act). These proceedings were brought in sufficient time for all defects alleged by the owners to be considered and determined by the Tribunal.

4. The parties were self-represented.

The owners’ case

5. In their application the owners’ state that there was incomplete work, defects and a poor quality job. They list 32 defects and claim damages of $88,000.00.

The builder’s case

6. In a letter to the Tribunal dated 12 April 2021 the builder states that there are no defects on site and provide a brief answer to each of the 32 defects referred to by the owners.

The contract

7. Clause 39 of the contract set out as express warranties all of the warranties which are contained in s18B(1) of the Act.

8. Clause 40 of the contract is also relevant as it sets out mandatory conditions.

9. In accordance with Tribunal orders the parties’ filed a copy of the contract as signed by them and the D/A stamped drawings relating to the work carried out by the builder.

The evidence

10. The owners filed submissions dated 7 April 2021 with 7 annexures which included a Standard Owner Builder Warranty Inspection Report dated 19 March 2020. The owners did not rely on this report as their expert evidence in the hearing. Nonetheless, when appropriate I referred to the report as evidence of what was observed as at the date when the report was provided.

11. The owners also filed submissions dated 27 April 2021 (received in the Tribunal on 3 May 2021) with 15 annexures. Annexure 6 was a special Expert Technical Report dated 29 March 2021 prepared by Mr Valstar. There was no objection to Mr Valstar’s ability to give opinion evidence in the Tribunal. I accept him as an expert who is able to give opinion evidence regarding the owners’ defect claims.

12. Annexure 14 was a scott schedule of 41 items. At page 10 of Annexure 14 was a document prepared by Mr Valstar which stated that the owners had prepared the list of defects (scott schedule). He also stated:

‘My opinion as to the defects vary showing:

some items (matters) are acceptable, void of concerns, seen as typical and expected findings.

items requiring further investigation and are worthy of consideration. The defects reported on exist, where a remedial work or replacement would be required.’

13. The scott schedule was prepared by the owners in that they filled out the second column. The Expert’s Comments column, the Remedial work required column and the Estimation of cost column were filled out by Mr Valstar, or his comments from other documents were placed in those columns

14. The builder relied upon a report dated 18 May 2021 prepared by Mr B Frizzell. There was no objection to Mr Frizzell’s ability to give opinion evidence in the Tribunal. I accept him as an expert who is able to give opinion evidence regarding the owners’ defect claims. Mr Frizzell provided evidence on 41 of the owners defect items. He stated that the builder was to rectify or complete remedial work in connection with defect items, 1 (part thereof), 3, 8, 9, 11, 23, 25, 27 and 30. As regards the other items, Mr Frizzell states in some instances that no action is required where the experts agree that there is no defect, or in other cases, that a defect is disputed on the basis that the owners have not proven the defect, or there is a contractual issue.

15. As stated above, on 12 April 2021 the builder stated that there were no defects on site and provided a brief answer to each of the 32 defects referred to by the owners.

16. On 5 July 2021 the owners filed a 4 page submission which I have had regard to.

17. On 24 August the builder filed a submission with supporting documents which stated that it had complete certain remedial work in connection with items 1, 3, 9, 11, 23, 25, 27 and 30 of the scott schedule.

18. I have taken all of the evidence referred to above into account.

19. The parties were unable to reach agreement at the hearing on an appropriate form of orders to resolve the proceedings. It will therefore be necessary to deal with each of the items in the scott schedule.

20. In a defects case such as is brought by the owners, for them to be successful it is necessary for them to establish that the builder has breached one or other of the express warranties in clause 39 of the contract, or an obligation referred to in clause 40 of the contract or any other relevant provision of the contract.

Principles applicable to considering defect claims

21. In Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 an Appeal Panel approved of what I stated in MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194 at [46] in connection of what evidence in my view needs to be provided in order to establish a beach of the implied warranties in s18B(1) of the Act, or in these proceedings, the express warranties in clause 39:

‘Evidence that work does not comply with the Building Code of Australia would establish a basis for a finding that sub section 18B(c) of the Act has been breached. Evidence of the details in which work does not comply with the contractual plans and specifications would form the basis for a finding that sub section 18B(a) of the Act has been breached. Evidence of work not being carried out in a proper and workmanlike manner would in my view involve identification of the work in question, a statement of how the expert would expect it to be carried out in in a proper and workmanlike manner and then identification of the factors which establish that the way in which the work has been carried out falls short of it being carried out in a proper and workmanlike manner. Evidence of this nature, if accepted, would form the basis for a finding that sub section 18B(a) of the Act has been breached’

22. In Hislop v Jakanda Pty Limited [2019] NSWCATCD (unreported) I referred to the above decisions and stated in connection with an allegation that work does not comply with plans or specifications:

‘I would enlarge upon the extract above by stating ‘Identification of, first the relevant contractual plans and specifications and secondly, evidence of the details in which the work, as built, does not comply with those contractual plans and specifications would form the basis for a finding that sub section 18B(1)(a) of the Act has been breached’.

23. I will apply the principles referred to above in determining the owners’ defect claims.

Item 1 – Bedroom floors

24. The owners’ expert states that the work is acceptable. The builder’s expert states that bedroom 4 requires rectification work. I accept his evidence. The builder states in its 24 August submission that this work has been carried out. I accept that evidence.

Item 2 - Bump in the trafficable flooring

25. The experts agree that this item is not a defect and insignificant, typical and expected within a suspended floor structure.

26. This item of the owners’ claim is rejected.

Item 3 – Main entry door

27. Both experts agree that this item is defective. The builder’s expert states that the builder has agreed to replace the door. He also gives a scope of work for associated work. The builder states in its 24 August submission that this work has been carried out. I accept that evidence.

Item 4 – Water leakage in the main kitchen

28. The owners allege that there is water leaking into the kitchen. The owners’ have referred to their emails where they complain that water is leaking into the kitchen, the latest of which is 10 November 2020. They also refer to photographs of water leaking. They attribute the cause to be uneven roof box gutters which allow water to enter into wall cavities. On 12 April the builder stated that it attempted on several occasions to find the leak and that Mr Morrison went onto the site and sealed all expansion joints and was of the belief that the leaking had stopped.

29. At the hearing the owner stated that there was leakage. The builder stated that it still held the view that the leaking had stopped.

30. I find that the builder had in the past acknowledged that there was leakage into the kitchen, that it had attended the site to carry out rectification work and held the view that its rectification work was successful. I also find that the owners contended that the leaking was continuing.

31. The owners’ expert states that the remedial work was erroneous, without any further detail. In the scott schedule the owners’ expert states that further investigation is required. The builder’s expert states that no defect has been proven and there was no visible damage to the kitchen wall.

32. The experts state that further investigation is required.

33. I find that the owners are obliged to prove on the balance of probabilities that the builder breached clause 39 of the contract and as a result there is water ingress into the kitchen. In the cases cited at [17] and [18] I explained what type of evidence would ordinarily be required to prove such a breach. I find that the owners have failed to establish that there has been a breach of contract. All that they have done is establish that further investigation is required. I also reject the owners’ assertion that uneven roof box gutters allow water to enter into wall cavities thus causing the leaking. I find that the owners do not possess the necessary expertise to give opinion evidence in the Tribunal about the cause of leaking into the kitchen.

34. The owners are unsuccessful on this item.

Item 5 - Water leakage into bedroom 3

35. The owners’ expert states that this is similar to item 4. The builder’s expert states that no defect had been proven and that there was no water staining or damage.

36. This item is rejected on the same basis as item 4. The owners are unsuccessful on this item.

Item 6 – Water leakage Lounge Room

37. The owners’ expert states that this is similar to item 4. The builder’s expert states that no defect had been proven and that there was a small stain on the ceiling. The builder’s expert states that he is unable to determine the cause of the stain or the responsibility.

38. This item is rejected on the same basis as item 4. The owners are unsuccessful on this item.

Item 7 - Garage slab is uneven

39. The owners’ expert states that a typical and expected fall from the rear wall of the garage to the front entry is non –existent. The builder’s expert has stated that the garage floor is flat and there is no fall indicated on the contract drawings. I accept the builder’s expert’s evidence that there is no fall indicated on the contract drawings.

40. I find that the owners are obliged to prove on the balance of probabilities that the builder breached clause 39 or 40 of the contract in connection with the garage slab. I find that they have not discharged their onus. Their expert’s evidence does not persuade me that the builder breached clause 39 or 40 of the contract, particularly when the contract and D/A drawings do not require a fall on the garage slab.

Item 8 - Alfresco floor uneven

41. The defect is stated to be that there has been a failure to achieve a proper and functional fall to drainage facilities

42. The builder acknowledges defective work as it has agreed to install a plastic grated drain near the alfresco door.

43. I accept the builder’s evidence given at the hearing that water pools over 2 tiles of 600 x 400 mills. This evidence accords with the photograph at page 9 of annexure 7 of the owners’ 3 May 2021 documents.

44. I find that the builder’s rectification method is preferable to the owners’ expert’s proposal of removal of tiles and topping the base to achieve an acceptable fall, since he states that it will cause consequences to other areas beyond the area of concern.

45. The builder is to provide the grated drain to the alfresco floor as was shown on the contract and/or the D/A Drawings (particularly engineering drawing 180006SIA Issue A) and as referred to in the Rev. 06 Specification & Costing (if referred to or described therein). If necessary the parties must refer to the Hydraulic Engineer for details of the grated drain required, if such details have not already been provided.

Item 9 - Roof box gutters uneven

46. The owners’ expert has stated ‘Nil work required’. The builder’s expert is far more critical of the builder’s work. He has stated a number of deficiencies and states that the builder should carry out rectification work in accordance with NCC 2016 and AS 3500.3.

47. I accept the builder’s expert’s detailed evidence on this item, in preference to the generalised evidence of the owners’ expert.

48. The builder states in its 24 August submission that this work has been carried out. I accept that evidence..

Item 10 - Water feature near the pool

49. The owners have made numerous complaints about this item of the works. The owners’ expert agrees that the structure looks poor and is not functioning as one would expect. He states that it is possible that the structure will require removal and replacement. No reasons are provided to substantiate this opinion. The respondent’s expert states that no defect has been proven, but notes that the water feature is leaking from the east side and the east end at the base. He states that he was unable to determine the cause of the leaking or the responsibility for the leaking.

50. I find that the owners are obliged to prove on the balance of probabilities that the builder breached clause 39 or 40 of the contract in connection with the water feature. I find that they have not discharged their onus. Their expert’s evidence does not state in what respects the work relating to this item breached clause 39 or 40 of the contract in the manner referred to in s[17] and [18] above.

51. The owners are unsuccessful on this item.

Item 11 –CCTV camera

52. The expert for the builder states that the builder has agreed to supply and install an extra camera to the same specifications as existing cameras to be installed at a location that can be accessed through the roof and cavity space.

53. The builder states in its 24 August submission that this work has been carried out. I accept that evidence.

Item 12 - Ducted vacuum outlet

54. The owners state that one outlet is missing. Their expert makes no comment. The builder’s expert states that he has been instructed that the extra outlet has been installed and is located on the motor of the system which is installed in the garage. The builder confirms this information in its 12 April document. I accept the builder’s evidence as it would I find have a precise understanding of what it provided and where.

55. To resolve the issue in connection with this item I will order the builder to inform the owners of the precise location of the Ducted vacuum outlet in the garage.

Item 13 – OSD tank lids

56. The owners have given a description of the facts that they say supports this item. Their expert states that he believes the present situation is non-compliant and will require addressing. He does not provide details or a logic driven reasoning process to support his belief. The builder’s expert states that this item is not a defect. He states that the OSD tank has been signed off, by whom is not stated and that an occupation certificate has been issued.

57. I find that the owners are obliged to prove on the balance of probabilities that the builder breached clause 39 or 40 of the contract in connection with the OSD tank lids. I find that they have not discharged their onus. Their expert’s evidence does not persuade me that the builder breached clause 39 or 40 of the contract in connection with this issue.

58. The owners are unsuccessful on this item.

Item 14 – Driveway

59. The owners complain that the driveway work is not done and have made complaints about this item since 5 January 2020. The builder states in its 12 April 2021 document that there was a variation regarding this item. It attaches its invoice regarding the variation which is dated 16 October 2019 and which is for a total of $6,864.00. It further states that the concrete base has been installed ready for spray, but that aspect of the work has been prevented by the owners. The builder states that it is willing to make a financial adjustment and pay the owners the amount relating to the charcoal sprayed stencil, which amount is not stated, less what is owing.

60. The owners also state that there is a cracked driveway. Other than stating that he believes that the situation requires addressing, the owners’ expert provides no other evidence in connection with this claim. There is no evidence from the owners’ expert to support the allegation of a cracked driveway. The builder’s expert states that the cracks are of no significance.

61. The evidence in connection with this item establishes that the variation has not been fully carried out because of the owners’ actions. There is no evidence to support the claim that the driveway is cracked such as to require rectification.

62. The builder stated in its 12 April document that it is willing to return the money for the charcoal sprayed stencil. However there is no evidence about the cost of the sprayed stencil or any amount owing.

59. Doing the best that I can and without any assistance from the parties as regards the relevant evidence, I will allow the owners $1,500.00 for the charcoal sprayed stencil that was not provided.

Item 15 – Sewerage Smell

64. The owners’ expert states that he believes this issue has been addressed. There is no evidence to support a finding that the builder breached the contract in connection with this item.

65. The owners are unsuccessful on this item.

Item 16 - Rainwater garden

66. The owners’ states that the builder did not carry out this item of work, that they did, at a cost of $1,600.00. In annexure 7, this item is explained with some more information, namely that the builder refused to do the landscaping.

67. The experts make no meaningful comments about this item.

68. The builder states in its 12 April 2021 document that the rainwater garden was built as ‘per Hydraulics and signed off by the plumber.’ At the same time the builder states that it is not responsible for landscaping.

69. The stormwater drainage details on sheet 2 of 2 refer to a ‘Rain Garden’. The details show vegetation on top of the rain garden.

70. The builder refers to a document ‘Rev 06 Specification & Costing’ which I find is a contract document which states on page 22 that there is no allowance for Landscaping.

71. Given the sparse evidence on this item I find that the builder had no obligation to do the landscaping work because of document ‘Rev 06 Specification & Costing’ which states on page 22 that there is no allowance for Landscaping. This item of the owners claim is rejected.

Item 17 – OC Certificate

72. The owners’ state that the builder failed to provide engineering and stormwater final survey reports, which they had to obtain at a cost of $1,720.00.

73. The experts make no meaningful comments about this item.

74. The contract states at clause 22 that the builder was not required to obtain a certificate of occupancy or final inspection certificate relating to the building works.

75. The document ‘Rev 06 Specification & Costing’ which I have found to be a contract document states on page 2:

‘Final Survey required for Occupation Certificate included’

76. The builder states that it did provide the final survey. I find that the reference to the final survey of the land, not the engineering and stormwater final survey reports which are documents which are more probably required in connection with an occupation certificate, which was at the owners’ expense.

77. I find that the builder was under no obligation to provide the owners with the engineering and stormwater final survey reports.

78. The owners are unsuccessful on this item.

Item 18 – Levelling the back yard

79. The owners state that the builder refused to level the back yard as per the agreement, and as a result they carried out that work at a cost of $1,500.00.

80. The builder states in its 12 April 2021 document that it has removed all the rubbish from the site which is ready for landscaping, which is not included in the contract. The builder also states that it left the back yard at RL levels as shown on the architectural drawings.

81. The experts make no meaningful comments about this item.

82. Document ‘Rev 06 Specification & Costing’ which I have found is a contract document states on page 22 that there is no allowance for Landscaping.

83. The owner has provided no evidence at all that the builder failed to level the site to the RL levels shown on the architectural drawings, so that it was ready for landscaping.

84. The owners are unsuccessful on this item.

Item 19 – Stairs in the backyard supposed to be concrete

85. The owners state that the stairs in the backyard are supposed to be concrete but are made of bricks.

86. The builder states that these stairs are on a concrete footing with brick stairs ready for tiling.

87. The experts state that what has been provided is functional.

88. I find that the real issue in connection with this item is, what did the contract require to be provided. The experts do not address this issue.

89. At the hearing the builder’s representative conceded that stairs were to be formed up in concrete were not. I find that this is a breach of clause 39(1)(a) of the contract.

90. The owners are successful in connection with this item.

91. I will order that the builder is to construct the stairs in the backyard in accordance with contract and/or the D/A Drawings, especially the engineering drawings, and as referred to in the Rev. 06 Specification & Costing (if referred to or described therein). This work will include any necessary demolition to allow that work to be carried out.

Item 20 - Retaining wall around house cracked, chipped, etc

92. The owners’ expert states that the builder’s work in connection with this item is acceptable with nil work required.

93. There is no evidence to support this item.

94. The owners are unsuccessful on this item.

Item 21 – Structural Cracks at the front of the house

95. The experts agree that whatever cracking has taken place, the cracking is not structural.

96. Mr Valstar states that repainting the entire front façade is required to achieve an acceptable finish because the patching that the builder carried out has resulted in the remedial work standing out with variations as to texture and tone. The builder’s expert does not provide a response to the repainting issue.

97. I find that the owners will be successful in connection with this item based on Mr Valstar’s un-contradicted evidence of the need to repaint the front façade.

98. I will order the builder to repaint the front façade of the residence in accordance with the contract and/or the D/A Drawings and as referred to in the Rev. 06 Specification & Costing (if referred to or described therein).

Item 22 – Planter box at front leaking, poor waterproofing

99. The effect of the experts’ evidence is that there has been no breach of contract in connection with this item and there is no work remedial work required.

100. The owners are unsuccessful on this item.

Item 23 – Feature wall cladding at the front of the house loose and stained

101. The builder has agreed to secure the cladding at the mitre joint.

102. The builder states in its 24 August submission that this work has been carried out. I accept that evidence.

Item 24 – Cracked and stained tiles

103. This item is limited to bathrooms and balconies Refer pages 27 – 30 of annexure 7 to the owners’ 27 April 2021 documents and referred to in the report of March 2020 at annexure 4.

104. The owners’ expert opinion about this item is equivocal.

105. The builder’s expert states that he observed 1 tile with the corner broken. He otherwise states that the owner has been living in the premises, suggesting that the cracking is as a result of fair wear and tear.

106. The evidence regarding this item is not particularly comprehensive. However since the Standard Owner Builder Warranty Inspection Report dated 19 March 2020, some 4 months after the owners took possession of the residence refers to cracked tiles, I find that the owners have produced sufficient evidence to persuade me that the builder breached the contract and as a result the tiles referred to in this Report cracked. So far a stained tiles are concerned, the photographic evidence said to be of stained tiles does not persuade me that there has been staining. In addition the owners’ expert does not refer to stained tiles.

107. I will order the builder to replace all cracked tiles that are referred to in the Standard Owner Builder Warranty Inspection Report with identical tiles or as closest matches as can be obtained.

Item 25 – Poor installation of door hardware

108. The builder has agreed to carry out rectification work in connection with this item.

109. The builder states in its 24 August submission that this work has been carried out. I accept that evidence.

Item 26 – Uneven cupboard doors

110. The effect of the experts’ evidence is that there has been no breach of contract in connection with this item and there is no work remedial work required.

Item 27 – Paint patches inside

111. The builder has agreed to carry out rectification work in connection with this item.

112. The builder states in its 24 August submission that this work has been carried out. I accept that evidence.

Item 28 – Messy and patchy exterior paint

113. The owners have been successful in connection with item 21 which related to the front façade of the residence.

114. There is no evidence from the experts that would warrant a finding that the owners are successful in establishing that poor quality painting extends beyond the front façade of the residence.

Item 29 – Fireplace

115. There is no evidence from the experts that would warrant a finding that the owners are successful in connection with the fireplace.

Item 30 – Right side of the house

116. The builder has agreed to carry out rectification work in connection with this item. The builder states in its 24 August submission that this work has been carried out. I accept that evidence.

Item 31 – BBQ

117. The owners state that the BBC has not been fixed.

118. There is no evidence from the experts that would warrant a finding that the owners are successful in establishing that there has been a breach of contract in connection with the BBQ.

119. The owners are unsuccessful on this item.

Item 32 – Loose Timber Games room

120. There is no evidence from the experts that would warrant a finding that the owners are successful in establishing that there has been a breach of contract in connection with loose timber in the games room.

121. The owners are unsuccessful on this item.

Item 33 – Ceiling holes in the Home theatre

122. There is no evidence from the experts that would warrant a finding that the owners are successful in establishing that there has been a breach of contract in connection with ceiling holes in the home theatre.

123. The owners are unsuccessful on this item.

Item 34 – Broken toilet roll holder bedroom 2

124. The builder’s expert states that the toilet roll holder is loose.

125. This item was not mentioned in the Standard Owner Builder Warranty Inspection Report dated 19 March 2020. On that basis I find that this item is not a defect but part of normal maintenance.

126. The owners are unsuccessful on this item.

Item 35 – Front stair lights

127. In annexure 7 of the owners 27 April documents they provide a photograph of a exposed electric wire. In its 12 April 2021 document the builder stated that it would repair this item after an inspection. I will order the repair of the item based on this concession. The owners’ photograph clearly shows an exposed electrical wire.

Item 36 – Chipped and cracked sink and bowls –powder room and bedroom 2

128. There is no evidence from the experts that would warrant a finding that the owners are successful in establishing that there has been a breach of contract in connection with the cracked sink and bowls in the powder room and bedroom 1.

129. These items were not mentioned in detail in the Standard Owner Builder Warranty Inspection Report dated 19 March 2020. There is a reference to a patched basin in ensuite 3. However that photograph is different to the one the owners rely on in annexure 7. There is no clarity as to what bowls the owners are referring to and where in the residence as there are numerous bathrooms and ensuites. On that basis I find that these items are not defects, but part of normal maintenance.

130. In any event at the hearing the builder stated that 2 bowls were provided to the owners who have not installed them. The owners are unsuccessful on this item.

Item 37 – Bermuda waste cover missing

131. At the hearing the builder conceded this item by stating that it would repair the item, which I find is minor.

Item 38 – Chipped wall feature

132. There is no evidence from the experts that would warrant a finding that the owners are successful in establishing that there has been a breach of contract in connection with the chipped wall feature

133. The owners are unsuccessful on this item.

Item 39 - Miscellaneous defects on hand over – carpet

134. The owners stated that this item was not pressed.

Item 40 – Spray hose not installed as per agreement in washrooms

135. The owners have not provided any evidence that would provide a basis for a finding in their favour in connection with this item. The experts have no meaningful evidence on this item.

136. The owners are unsuccessful on this item.

Item 41 – Audio cables

137. The builder stated at the hearing that it would advise the owners of the locations of the cables, which the owners agreed were installed, but which they could not find.

Section 48MA of the Act

138. I am required to consider s48MA of the Act which states:

‘A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the "responsible party" ) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.’

139. In these proceedings the owners stated in their 5 July submission that if the builder is found to be of integrity to rectify, they have no objections.

140. The builder states that it would prefer to remedy the defects. I find that there is ample evidence that the builder has attended the residence in the past to rectify defects and has not exhibited an attitude that it is or was indifferent to the fact that there were defects to rectify at the owners residence.

141. I find that there is no proper reason not to implement the preferred option as referred to in s48MA of the Act.

Outcome of proceedings

142. The table below represents the findings as stated in the above reasons.

Scott schedule item number	Outcome
1 Bedroom floors	The relevant work has been carried out
2 Bump in the trafficable flooring	Owners unsuccessful
3 Main entry door	The relevant work has been carried out
4 Water leakage in main kitchen	Owners unsuccessful
5 Water leakage into bedroom 3	Owners unsuccessful
6 Water leakage lounge room	Owners unsuccessful
7 Garage slab is uneven	Owners unsuccessful
8 Alfresco Floor	Builder to rectify
9 Roof box gutters uneven	The relevant work has been carried out
10 Water feature	Owners unsuccessful
11 CCTV Camera	The relevant work has been carried out
12 Ducted Vacuum outlet	Builder to inform the owner of the position of the Ducted Vacuum outlet
13 OSD tank lids	Owners unsuccessful
14 Driveway	Builder to pay
15 Sewerage smell	Owners unsuccessful
16 Rainwater garden	Owners unsuccessful
17 OC certificate	Owners unsuccessful
18 Level back yard	Owners unsuccessful
19 Stairs in the backyard concrete	Builder to rectify
20 Retaining walls chipped	Owners unsuccessful
21 Structural cracks	Builder to rectify
22 Planter box	Owners unsuccessful
23 Feature wall at front of house	The relevant work has been carried out
24 Cracked and stained tiles	Builder to rectify
25 Poor installation of door hardware	The relevant work has been carried out
26 Uneven cupboard doors	Owners unsuccessful
27 Paint patches inside	The relevant work has been carried out
28 Messy and patch exterior paint	Owners unsuccessful
29 Fireplace	Owners unsuccessful
30 Right side of the house	The relevant work has been carried out
31 BBQ	Owners unsuccessful
32 Loose timber games room	Owners unsuccessful
33 Ceiling holes in home theatre	Owners unsuccessful
34 Broken toilet roll holder	Owners unsuccessful
35 Front light stairs	Builder to rectify
36 Chipped and cracked bowls	Owners unsuccessful
37 Bermuda waste covering	Builder to rectify
38 Chipped wall feature	Owners unsuccessful
39 Miscellaneous defects on handover	Not pressed
40 Spray hose	Owners unsuccessful
41 Audio cables	Builder to advise the owners

143. The work order in these proceedings is that the builder must not later than 28 February 2022 do the following things and carry out the following work in accordance with s18B(1) of the Act and with a high level of supervision and inspection by qualified and licensed personnel:

1. provide the grated drain to the alfresco floor as was shown on the contract and/or the D/A Drawings (particularly engineering drawing 180006SIA Issue A) and as referred to in the Rev. 06 Specification & Costing (if referred to or described therein). If necessary the parties must refer to the Hydraulic Engineer for details of the grated drain required, if such details have not already been provided;

2. inform the owners of the precise location of the Ducted vacuum outlet in the garage;

3. construct the stairs in the backyard in accordance with contract and/or the D/A Drawings, especially the engineering drawings, and as referred to in the Rev. 06 Specification & Costing (if referred to or described therein) such work to include any necessary demolition to allow that work to be carried out;

4. repaint the front façade of the residence in accordance with the contract and/or the D/A Drawings and as referred to in the Rev. 06 Specification & Costing (if referred to or described therein);

5. replace all cracked tiles that are referred to in the Standard Owner Builder Warranty Inspection Report with identical tiles or as closest matches as can be obtained;

6. Repair or replacement of the exposed electric wire at the front of the house as depicted in Annexure 7 of the owners 27 April documents;

7. Place the appropriate cover on the Bermuda waste referred to at item 37 of the scott schedule; and

8. Advise the owners of the precise locations of the cables referred to at item 41 of the scott schedule.

Costs

144. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.

145. The costs respondent will have 14 days after the date it or he receives the application to lodge in the Tribunal and serve on the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

146. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

147. Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

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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: 15 March 2022