Cirocco Constructions Pty Ltd v Clarke (No 4)

[2024] SADC 150

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

CIROCCO CONSTRUCTIONS PTY LTD v CLARKE & ORS (No 4)

[2024] SADC 150

Judgment of her Honour Judge Thomas  

13 November 2024

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - VARIATIONS

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - OTHER MATTERS

PROFESSIONS AND TRADES - ARCHITECTS - DUTIES AND LIABILITIES

ARBITRATION - ADOPTION OF AWARD

The applicant/cross respondent builder (Cirocco Constructions Pty Ltd) and the respondent/cross applicant owner (Mrs Clarke) entered into a written building contract for the construction of a new custom designed house, swimming and spa pools, outdoor entertaining area and the renovation of an old church hall in Rose Park in November 2012.  The first third party (Williams Burton Architects Pty Ltd) is the owner’s architect, engaged from March 2012 to design, document and administer the building contract.  The second third party (Tasmanian Sandstone Quarries Pty Ltd) is the supplier of Tasmanian sandstone that was purchased and used on the Owner’s house and garage walls and damaged the works when it cleaned the stone with a mild solution of acid in late 2014.

In May 2015, the builder commenced this proceeding seeking payment of its last two invoices for $158,359.79 inc GST, following the certification of progress payment certificates Nos 11 and 12 (PPC 11 and PPC 12) whilst defect correction works were ongoing.

In her first defence, the owner claimed PPC 11 and PPC 12 were invalid and brought her cross action against the builder for defects in the works and third party proceedings against the architect claiming breaches of its retainer and common duty of care in issuing PPC 11 and PPC 12.  The builder brought a successful summary judgment application and PPC 12 was found to be provisionally binding by this Court in July 2015.  The owner paid PPC 12 with interest.  The owner challenges the builder’s entitlement to the approved variations and provisional sum adjustments certified in PPC 12 and makes further miscellaneous claims for credit adjustments under the building contract.

The builder joined the stone supplier as a third party to the owner’s cross action seeking contribution and/or indemnity for any liability to the owner for defects in the Tasmanian sandstone supplied or the damage caused to the works by the stone supplier’s negligent stone cleaning works.

In October 2020, the owner’s claims for remedial costs of $923,685.39 excluding GST for 183 items of defective or incomplete works were referred to arbitration.  The arbitral award delivered on 28 June 2022 determined total remedial costs for defective or incomplete works in the amount of $59,053.09 excluding GST.  The arbitrator referred a number of issues back to the trial judge for determination, other questions were reserved to the trial judge and the owner made limited challenges to aspects of the award.  The other parties joined issue with the owner’s challenges and contend there is no good reason not to adopt the entirety of the award as part of this Court’s judgment in the proceeding.

The owner’s claims about defects in the sandstone cladding on the external walls of her house and garage were reserved for the trial judge to determine.  These claims required determination of the varied contractual requirements for new stone masonry in circumstances where in January 2013, the specified Basket Range sandstone became unavailable.  The parties embarked on a process of selection and approval of an alternate stone and by their dealings between April and June 2013 agreed a varied specification for new stone masonry.  The dispute about the terms agreed as to stone colour turns principally on what happened at a meeting at the stone supplier’s Gillman yard on 30 April 2013 and two meetings on-site in June 2013.

There are further disputes about other stone defects alleged by the owner including at its quality and workmanship.  The owner further alleges the architect instructed the stone to be laid with a larger joint size without her approval with the result that it is not fine ashlar stonework.  The owner claims the stone defects are so substantial that the entirety of the stonework must be replaced.

There are related disputes about the effect of non-compliance with the contractual scheme for variations, provisional sum adjustments, the effect of notices of dispute and practical completion and architect’s instructions, prevention, reasonableness, the time for assessment of damages and the entitlement of the builder to recover the cost of work performed outside the contract.

Held:

1. Clause A8.2 of the Building Contract should be read as provisionally binding and does not operate to exclude the parties’ rights to a remedy for a breach of contract arising by operation of law. If it was read as finally binding, it would be void by s 42 of the Building Work Contractors Act 1995 (SA): Part B [335]-[357].

2.      PPC 11 is invalid and has no contractual effect in the absence of a valid notice of practical completion having been issued in accordance with the contractual scheme: Part D [884]-[929].

3.      The architect’s certification of  practical completion of the works in two notices is invalid.  The Building Contract does not contemplate separable portions of the works or the issue of more than one notice of practical completion for different separable portions with different dates of practical completion, defects liability periods and retention sums: Part D [935]-[943].

4. The architect should proceed to issue a single notice of practical completion in accordance with clauses M4 or M8 of the Building Contract: Part D [944].

5.      PPC 12 is not final and conclusive.  Summary judgment in the builder’s favour only resolved the question of the owner’s provisional liability to pay the builder’s invoice for the amount certified in accordance with the Building Contract leaving the owner’s challenges to approved variations, provisional sum adjustments, other claims and deductions for allegedly defective and incomplete works to be determined by this Court: Part D [945]-[950].

6.      The amount certified in PPC 12 for approved variations was overstated by $151.05 excluding GST: Part D [951]-[1182].

7.      The amount certified in PPC 12 for provisional sum adjustments was overstated by $8,672.20 excluding GST: Part D [1183]-[1310].

8.      Credit adjustments in the owner’s favour for the overstatement of approved variations ($151.05 excluding GST) and provisional sum adjustments ($8,672.20 excluding GST) should be allowed by the architect in issuing the final certificate.

9.      The selection and approval process provided for in the Architect’s Specification for new stone masonry was superseded by the parties’ inconsistent conduct and their mutual assent to a materially different process.  The specified stone colour under the varied Building Contract is the range of light coloured Tasmanian sandstone laid in the section of the stonework approved by the owner on site on about 21 or 22 June 2022, save for the several stones near the front for that were to be removed (and were) and the remainder of the stonework was subject to the architect’s direction to use the best stone on the front: Part E [1345]-[1549].

10.    Save for one chipped stone, the owner has not established on the evidence that her complaints about the colour and workmanship of the external stone cladding on her house and garage walls are defects in the works and constitute breaches by the builder of the Building Contract as varied: Part E [1558]-[1660].

11.    Contrary to her claim she did not approve the joint size instructed in architect’s instruction AI:07, the owner did in fact by giving her approval to the stonework at Kermode Street as the design intent for the external stone cladding on her house and garage walls: Part C [433]-[446].

12.    The change in joint size in the built stonework does not defeat the contractual specification for ashlar stonework:  Part E [1665]-[1673].

13.    The phenomenon of ‘quarry sap’ is not a defect.  The builder’s warranty of quality in clause A.09 of the Architect’s Specification should not be construed as imposing on the builder an obligation to only supply sandstone that would not manifest ‘quarry sap’, an inherent characteristic of Tasmanian sandstone known to the parties:  Part E [1568]-[1613].  

14.    The measure of damages to which the owner is entitled is the cost of making the stonework conform with the requirements of the Building Contract.  In the absence of any evidence about whether the one proven chipped stone can be repaired or the stone replaced, for finality’s sake, remedial costs are assessed at $200.00 excluding GST and is solely the builder's liability:  Part E [1708]-[1713].

15. The arbitral award addressing other alleged defects and incomplete works should be adopted as a judgment of this Court under s 33(4) of the District Court Act 1991 (SA) save for the limited findings set out in Annexure B to these reasons: Part F [1714]-[2040].

16. Total determined remedial costs of the defects and incomplete works the subject of the award are $69,216.19 excluding GST as shown in Annexure C to these reasons: Part F [2038].

17.    The joint and several liability of the builder and the architect to the owner for remedial costs of $7,385.25 excluding GST for three referred items is to be limited under s 72 of the Development Act 1973 (SA) as to $2,242.97 to the Builder and $5,142.28 to the architect, both excluding GST:  Part F [2005]-[2033].

18.    The builder is entitled to a credit adjustment in the final certificate of $18,900.00 excluding GST for the insurance proceeds received by the owner for the unpaid remedial works for acid damaged items done by the builders’ subcontractors at the architect's direction:  Part F [1782]-[1819].

19. The builder is entitled to contribution from the stone supplier of $12,887.21 excluding GST for its liability to the owner for acid damaged items referred to arbitration under s 6 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA): Part F [2034]-[2036].

20.    By reason of the architect’s failure to properly administer  provisional sums strictly in accordance with section K of the Building Contract in breach of its retainer and/or duty of care, the owner has suffered loss and damage in the amount of the credit adjustments she has been denied totalling $8,670.00 excluding GST:  Section G [2050]-[2064].

21.    The architect’s claim for an equitable set off against any loss and damage for which it is liable to the owner for unpaid fees of $13,647.00 excluding GST is allowed.  Its claim for contractual interest is not proven and dismissed:  Part H [2121]-[2131].

22. The appropriate order to be made under s 37(6)(b) of the Building Work Contractors Act 1995 (SA) is for payment to be made by the builder by way of compensation: Part H [2117]-2120].

23.    The Court will hear the parties as to the form of orders and judgment, interest and the question of costs.

Development Act 1993 (SA) s 72; District Court Act 1991 (SA) s 33; Building Work Contractors Act 1995 (SA) ss 32, 37, 42; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) ss 3, 6, 8; Uniform Civil Rules 2020 (SA) rr 67.2(3)(a) and (c), 71, referred to.
Alstom Ltd v Yokogawa Australia Pty Ltd (No 7) [2012] SASC 49 ; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; Bedrock Construction and Development Ltd v Crea [2021] SASCA 66; Bellgrove v Eldridge (1954) 90 CLR 613; BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; Built Environs Pty Ltd v Saunders International Limited [2012] SASC 111; Built Environs Pty Ltd v Tali Engineering Pty Ltd [2013] SASC 84; Cirocco Constructions Pty Ltd v Clarke & Ors [2015] SADC 98; Cirocco Constructions Pty Ltd v Clarke (No 2) [2015] SADC 107; Cirocco Constructions Pty Ltd v Clarke & Ors [2020] SADC 82; Clarke v Cirocco Constructions Pty Ltd & Ors [2022] SASC 126; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; Crea v Bedrock Construction and Development Pty Ltd [2020] SADC 124; D Galambos & Son Pty Ltd v McIntyre (1974) 5 ACTR 10; Dare v Pulham (1982) 148 CLR 658; Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd & Ors (No 3) [2012] VSC 99; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Ermogenous v Greek Orthodox Community of SA Inc (2003) 209 CLR 95; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251; Gilbert-Ash Northern Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689; Gould v Mount Oxide Mines Ltd (In liq) (1916) 22 CLR 490; Hawkins v Clayton (1988) 164 CLR 539; Hegarty v Keogh (No 2) [2023] SASCA 30; Johnson v Perez (1988) 166 CLR 351; Kirsch v HP Brady Pty Ltd (1937) 58 CLR 36; Liebe v Molloy (1906) 4 CLR 347; Lumbers v W Cook Builders Pty Ltd (In Liq) (2008) 232 CLR 635; Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; Morgan Equipment Co v UMW Corporation SDN BHD [2002] NSWCA 193; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; National Coal Board v William Neill & Son (St Helens) Ltd [1985] 1 QB 300; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Realestate.com.au Pty Ltd v Hardingham & Ors [2022] HCA 39; Robinson v Harman (1848) 156 ER 363; South Australian Railways Commissioner v Thomas (1951) 84 CLR 84; Stone v Chappel (2017) 128 SASR 165; The Owners - Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067; Tinckell v Duthy Homes Pty Ltd; Duthy Homes Pty Ltd v Tinckell [2020] SASCFC 24; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Tomko v Palasty [2007] NSWCA 258; Trimis v Mina [1999] NSWCA 140; Update Constructions Pty Ltd v Rozelle Child Care Centre Limited (1990) 20 NSWLR 251; Walker Group Construction Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27; Water Board v Moustakas (1988) 180 CLR 491, considered.

CIROCCO CONSTRUCTIONS PTY LTD v CLARKE & ORS (No 4)
[2024] SADC 150

Civil

Contents

INTRODUCTION

The Issues to be Determined

The Contracting Parties

Overview of the Contract

Procedural History

The Relevant Pleadings

The Arbitration

The Trial

The Views

The Documentary Evidence

The Witnesses Generally

The Owner’s Witnesses

Mrs Clarke

Dr Clarke

Associate Professor Danvers

Ms White

Mr Prider

Mr Pentelow

Mr Allen

The Builder’s Witnesses

Mr Cirocco

Mr Tittoto

The Architect’s Witnesses

Mr Williams

Ms Crowden

Mr McAllister

Mr Penglase

Mr Altamura

The Stone Supplier’s Witnesses

Mr Calabrese

PART A:  LEGAL PRINCIPLES

Ascertainment of Terms

Ascertaining Meaning

Damages

The Cardinal Rule

Reasonableness

Date of Assessment of Damages

Mitigation

Betterment

PART B:  FOUNDATIONAL MATTERS

The Written Building Contract

Form

The Builder’s Obligations

The Owner’s Obligations

The Role of the Architect

Payment Obligations

Practical Completion

Defects

Final Certificate

Variations to the Works

Claims to Adjust the Contract

Clause A8

The Architect’s Specification

Generally

For New Stone Masonry

Clause A.09.01

Other Relevant Provisions

Clause A.05.08

PART C:  THE FACTS

The Parties and their Relationship

Design and Specification of Basket Range Stone

Selection of an Alternative Stone

Kermode Street

Change of Pattern and Jointing

The Gillman Meeting

AI:04 – 1 May 2013

Ordering of Stone

Delivery of Stone

Set Up for Stone Site Meeting

Sample Dry Wall

AI:07 – 12 June 2013

Rejection of Stone

18 June Meeting

AI:08 – Stop Work Instruction

Subsequent Site Meeting

Completion of Stone Laying

First Complaint of Quarry Sap

Foreshadowed Practical Completion

Stonework Cleaning and Sealing

First Formal Defects List

Owner Moves into the House

Practical Completion Certified

New Stone Complaints

Further Assessment of Stonework

Lawyers and Litigation

May 2015 Complaints

25 June 2015 Site Meeting

Further Defects Lists

HSR Inspection

September 2015 Defects Correction Works

6 October 2015 Meeting

Builder’s Report on Defect Correction Works

HSR Report

November 2015 Defects List

AI:21 – Stone Cleaning Impasse

Cleaning & Sealing Trial

AI:22 – Stone Cleaning and Replacement

AI:22A – Stone Cleaning Held Over

Characteristics of Tasmanian Sandstone

The Stone Supplier’s Colour Categories

Exhibit R31

Sample Stone ‘SC 135’

The Photographic Evidence

The Laid Stonework

Acid Damaged Stones

PART D:  THE BUILDER’S CLAIMS AGAINST THE OWNER

Is PPC 11 Valid and Binding?

The Issues

Consideration

Clause C6

Consequences of the Invalidity of PPC 11

Owner’s Claim against the Architect

Validity of Two Notices of Practical Completion

Builder’s Claim for Payment under PPC 12

PPC 12 is not Final and Conclusive

Owner’s Challenge to Approved Variations, PC Sums etc

Approved Variations - $59,253.66 ex GST – The Pleaded Issues

The Parties’ Submissions

Legal Principles

Facts Generally

Extras (a) – Paint waterproofing around Foundation - $575.00 ex GST

Extras (b) – Supply & Fix 2 LVL Beams - $632.50 ex GST

Extras (c) -  Additional Steel - $2,875.00 ex GST

Extras (d) – Stair Additional Reinforcing & Concrete - $4,965.13 ex GST

Extras (e) – Boundary Block Wall Extra Height - $1,667.50 ex GST

Extras (f) – Adjust & Modify Lift Doors - $1,437.50 ex GST

Extras (g) – Supply & Fit Steel Frame for Safe - $552.00 ex GST

Extras (h) – Wall Tiles – Changed to ‘Cotton’ - $3,176.74 ex GST

Extras (i) – Wall Tiles – Pantry & Laundry - $575.00 ex GST

Extras (j) – Additional Moulding to Front Foor - $678.50 ex GST

Extras (k) – Cut Tiles for Porch & Balcony – $920.00 ex GST

Extras (l) – Labour to Fit Stone Window Rebates - $1,035.00 ex GST

Extras (m) – Rear Verandah Lining Materials - $2,415.00 ex GST

Extras (n) – Side Fence - $6,220.45 ex GST

Extras (o) – Water Feature - $5,842.00 ex GST

Extras (q) - Sealing of Cellar Floor - $667.00 ex GST

Extras (r) – Footings & Reinforcement - Front Fence - $4,996.75 ex GST

Extras (s) – Additional Mouldings - Front Fence - Nil

Extras (t) – Moulded Timber Handrail - Nil

Extras (u) – Additional Pool Items - $13,695.45 ex GST

Extras (v) – Supply & fix Additional LVL & Fascia - Nil

Extras (w) – Additional Plantation Shutters - Nil

Extras - Summary

PC Sum Adjustments

Pleaded Issues

Submissions

Consideration

Facts Generally

PC Sum Adjustment (a) – Solar Pool Blanket

PC Sum Adjustment (b) – Letter Box & Street Number

PC Sum Adjustment (c) - Repointing Hall Stonework

PC Sum Adjustment (d) – Church Hall Plastering

PC Sum Adjustments (e) & (f) - Wrought Iron Panels

PC Sum Adjustment (h) – Window Furniture

PC Sum Adjustment (i) – Door Hardware

PC Sum Adjustment (l) – Timber Repairs to Old Hall

PC Sum Adjustment (m) - Roof Repairs to Old Hall

PC Sum Adjustment (o) – Airconditioning

PC Sum Adjustment (p) – Electrical

PC Sum Adjustments (k) & (r) – Miscellaneous Works Old Hall

PC Sum Adjustments - Summary

Other Claims

Extra Costs – April 2013 - Nil

Cash Payment – March 2014 - Nil

Distinctive Gardens Direct Payment - Nil

Owner’s Delay Claim - Nil

PART E: THE STONE DEFECTS

The Liability Issues

The Nature of the Stone Defects

The Final Pleadings

Owner v Builder

The Stone Defects and the Builder

The Same Stone Defects

The Owner’s Case on Damages

The Builder’s Defences

The Architect’s Defences

The Third Party Claim

The Stone Supplier’s Defences

Scope of the Owner’s Pleaded Case on Stone Colour

Relevant Legal Principles

Objection to Departure from Her Pleaded Case

The Owner’s Ultimate Case

Conclusion

As to Colour Category

As to AI:04

Consistency of Colour

White and Creamy White

The Contractual Requirements for Stone

What were the agreed varied terms for Tasmanian Sandstone?

Breach of the Building Contract as Varied

Stone Colour

‘Quarry Sap’

‘Orange’ Stones

Mortar Colour

Chipped Stones

Workmanship

Acid Damaged Stones

Alternative Cases on Breach

Other Defences

Responsibility for any Breach of the Building Contract as Varied

Breach by the Architect

Ashlar Masonry and Joint Size

Approved Samples

Failure to Document Instructions

The Architect’s Instructions AI:21, AI:22 & AI:22A

Remedy

Required Remedial Works

‘Quarry Sap’

Acid Damaged Stones

Chipped Stone

Damages

Generally

The Cost of Remedial Works

Apportionment

PART F:  THE STATUS AND EFFECT OF THE AWARD

Which parts of the Award should the Court Adopt?

Reference to Arbitration

Reserved Issues

The Award

Principles as to Adoption of the Award

Referred Back & Other Issues

Findings Not Adopted

Practical Completion

Sealing the Cellar Concrete Floor

The Arbitrator’s Approach

Meaning of Defect

Observations at the View

Defences Based on DLPs and PC

Clause A.05.06 of the Specification

Clause A.09.01 of the Architect’s Specification

Defect ‘Caused’ by Builder

Certificates & Payment Issues

Prevention

Remedial Works Required

Remedial Costs

Cost Savings

Compromised Remedial Costs

The Owner’s Challenges to the Award

Issues For the Trial Judge

Approach

Acid Damaged CSS Items – Insurance Proceeds – Credit $18,900.00 ex GST

CSS Item 15.14 – Acid Damaged Pavers - $4,015.00 ex GST

CSS Item 16.18 – Pool Fence Fixings - Nil

Acid Damaged CSS Items – Conclusion

CSS Item 1.3 – Movement Cracks/Painting - $1,805.10 ex GST

CSS Items 1.11/26.21 – Door Thickness - $3,880.80 ex GST

CSS Items 2.9, 5.3, 13.3 & 25.10 – Exhaust Fans - $2.089.80 ex GST each

CSS Item 9.2 – Internal Stair Plaster – Nil

CSS Items 14.4 – Cellar Vent - $2,089.80 ex GST

CSS Item 15.17 – Verandah Nosing Profile - Nil

CSS Item 16.1 - Paving Drainage - Nil

CSS Item 16.5 – Church hall Window Masonry Cracks - $2,219.80 ex GST

CSS Item 17.19 - Stone Block at Central Porch Pier – Not Considered

CSS Item 19.1.1 - Repointing Church Hall - $350.00 ex GST

CSS Item 19.2(d) – Paintwork on Verandah Soffit – Nil

CSS Item 19A.1 & 20.12 – Church Hall Render - Nil

CSS Item 20.10 - Church Hall Timber Trims - Nil

CSS Item 20.16 - Finial - $4,945.45 ex GST

CSS Item 20.21 – Plastering West Wall Garage – Nil

CSS Items 29.1 – Bin Store Masonry Wall – Nil

CSS Item 29.5 - Bin Store Varnish Coating – Nil

CSS Item 29.6 - Bin Store PVC Pipes - Nil

Other Award Issues: Prevention by the Owner

Legal Principles

CSS Item 10.2 – Wrought Iron Panel Upper Church Hall - Nil

CSS Item 17.32 – Front Balcony Wrought Iron Balustrade - Nil

Other Award Issues: Reasonableness

The Legal Principles

Generally

CSS Item 14.4 – Cellar Vent

CSS Item 15.17 – Verandah Nosing Profile – Nil

CSS Item 15.12 – Clothesline – Nil

Acid Damaged CSS Items – Stone Supplier’s Liability

Remedial Works at Builder’s Cost

Damages - Time of Assessment

Apportionment

Generally

Acid Damaged CSS Items - $12,887.21 ex GST – No Apportionment

CSS Item 1.3 - Movement Cracks/Painting – No apportionment

CSS Item 14.4 – Cellar Vent - $2,089.80 ex GST – 60% Builder/40% Architect

CSS Item 16.5 – Church Hall Window Masonry Cracks – No Apportionment

CSS Item 17.32 – Wrought Iron Painting – No Apportionment

CSS Item 19.1.1 – Repointing Church Hall - $350.00 ex GST – 100% Architect

CSS Item 20.16 - Finial - $4,945.45 ex GST – 20% Builder/80% Architect

Other CSS Items Determined in Favour of the Owner

Result after Apportionment

Contribution

Acid Damaged CSS Items - $12,887.21 ex GST – 100% Stone Supplier

Conclusion – Adoption of the Award

PART G:  OWNER’S OTHER CLAIMS AGAINST THE ARCHITECT

Owner’s Claim against the Architect for PPC 11

Owner’s Claim against the Architect for PPC 12

Introduction

Approved Variations – $151.05 ex GST plus Interest

PC Sum Adjustments - $8,670.00 ex GST plus interest

Other Claims - Nil

Assessment of Defects - Nil

CSS Items Not Pressed

CSS Item 19.1.1 - Repointing Church Hall - $350.00 ex GST

CSS Item 20.16 – Finial - $4,945.45 ex GST

Other Claims

CSS Item 9.2 – Stair Plaster - Nil

CSS Item 14.4 – Cellar Vent - $2,089.80 ex GST

CSS Item 19.1 - Church Hall Windows - Nil

Assessment of Damages

PART H:  OTHER MATTERS

Builder’s Entitlement to Do Remedial Works

Architect’s Set Off - $13,647.90 ex GST

PART I:  CONCLUSION AND FORM OF JUDGMENT

ANNEXURE A – FINAL TRIAL PLEADINGS

ANNEXURE B – AWARD FINDINGS NOT ADOPTED

ANNEXURE C – FINAL SUMMARY AWARD DETERMINATIONS

INTRODUCTION

The Issues to be Determined

1. This proceeding concerns protracted and complex disputes between the owner, builder, architect and stone supplier arising from the owner’s complaints about defective and incomplete domestic building works carried out from 2012 to 2016 on land in Alexandra Avenue, Rose Park, approved variations, provisional sums, other minor claims and associated payment issues. 

2. The building works are significant, comprising the construction of a new custom designed house, swimming and spa pools, associated siteworks and landscaping and the renovation of an old church hall known as ‘Rose Hall’.

3. The issues to be determined are addressed in these reasons in five parts corresponding with the approach taken at trial and in closing submissions.  Relevant legal principles and foundational matters concerning the building contract are addressed in Parts A and B.  The proven facts are set out in Part C.

4. The issues to be determined are addressed as follows.

   Part D - The Builder’s Claims Against the Owner

   Part E - The Stone Defects

   Part F - The Status and Effect of the Award

   Part G - Owner’s Other Claims Against the Architect

   Part H - Other Matters

   Part I – Conclusion and Form of Judgment.

   The Contracting Parties

5. The Applicant and Cross Respondent, Cirocco Constructions Pty Ltd (the Builder), is a builder of custom designed residences. In November 2012, the Builder was engaged by the owner to construct the owner’s new residence.  Mr Rocco Cirocco is the sole director of the Builder and its principal representative in carrying out the relevant building works.

6. The Respondent and Cross Applicant, Mrs Rosslyn Clarke is the registered proprietor of the land (the Owner) and a party to the relevant contracts. The Owner was closely involved in all stages of the project from initial design and development approval through to construction and defect rectification. The Owner was precise in specifying her requirements, fastidious in her oversight of the building works and overly demanding as regards her requirements.

7. The Owner’s husband is Dr Ian Clarke.  Although not a contracting party or extensively involved in the contract administration the subject of dispute, Dr Clarke attended key meetings and is an important witness for the Owner.  He has an obvious interest in the outcome of this litigation and is partisan to the Owner’s case.

8. The Third Party, Williams Burton Architects Pty Ltd (the Architect)[1] specialises in high-end residential construction projects.  In February 2012, it was engaged by the Owner to provide full architectural services for the Owner’s new residence including design, documentation and contract administration.  Mr Robert Williams, one of the Architect’s directors was its representative and responsible for the Owner’s project until he retired in December 2015. He was primarily assisted by a junior employed architect, Ms Erin Crowden. 

   [1]    The Architect changed its name to Williams Burton Leopardi when Mr Robert Williams retired in December 2015 and Ms Sophia Leopardi became a director.

9. The Second Third Party, Tasmanian Sandstone Quarries Pty Ltd (the Stone Supplier) carries on business as a supplier of sandstone from its quarry in Tasmania and trades from its yard at Gillman. Tasmanian sandstone was purchased from the Stone Supplier and used as cladding on the external walls of the house, garage and water feature in the front garden.  Mr Rito Calabrese is the principal of the Stone Supplier and had all the relevant dealings with the other parties.

10. The Owner’s complaints about the colour and quality of the sandstone supplied and the workmanship in the laid stonework as not conforming with the contractual requirements for stone are the most significant alleged defects. The stone defects are addressed in Part E below. 

    Overview of the Contract

11. The Architect’s retainer by the Owner is recorded in writing in an unsigned service and fee summary.[2] 

    [2]    Exhibit R3.1.

12. The Architect prepared specification No. 2122 dated September 2012[3] (the Architect’s Specification) for the materials to be used and the works to be performed to construct the Owner’s new residence and the architectural drawings issued for tender and construction.  The Architect’s Specification is one of the specified contract documents.[4]

    [3]    Exhibit R3.3.

    [4]    Building Contract, Order of precedence – Schedule 3, Architect’s Specification clause A.02.

13. The building contract is in writing and comprises a standard form ABIC Simple Works SW-2008 H SA Contract dated 15 November 2012 (the Building Contract),[5] the Architect’s Specification and the contract drawings listed in Schedule 3 of the Building Contract (the Contract Drawings).[6] Foundational matters concerning the contractual framework are addressed in Part B below.

    [5]    Exhibit R3.2.

    [6]    Exhibits R1 and R3.4. The footing plans comprising part of the Contract Drawings were prepared by the engineers, Coombe Pearson Reynolds.

14. The initial contract price was $2.117 million including GST.

15. Building works (including defect correction works) were performed between 2012 and 2016.

16. Practical completion was scheduled for 11 April 2014.  The Owner moved into the house on 31 July 2014 whilst building works were still progressing on the church hall and attached garage.  On 1 December 2014, the Architect certified the date of practical completion for the works in two certificates: one for the works comprising the house and attached outdoor areas as 31 July 2014 and the second for the works comprising the church hall and attached garage as 10 October 2014.[7]  The validity of the Architect’s certification of two dates of practical completion of the works is considered in Part D below.

    [7]    Exhibit R3.195.

    Procedural History

17. This proceeding has had a long and complex history.  It was commenced on 10 April 2015 by the Builder filing a summons and statement of claim[8] seeking relief against the Owner for non-payment of its final two tax invoices totalling $158,359.79 for the works under the Building Contract.  Both invoices were rendered following the Architect issuing Progress Payment Certificates Nos 11 (PPC 11)[9] and 12 (PPC 12).[10]  At the time, building and defect correction works were ongoing.

    [8]    FDN 2.

    [9]    Exhibit R3.152.1315.

    [10] Exhibit R3.185.1411.

18. On 26 May 2015, the Owner filed her first defence alleging PPCs 11 and 12 were invalid and brought a cross action against the Builder for defects in the building works, claiming a defensive set off against any countervailing liability to the Builder and damages for breach of contract and, in the alternative, compensation under s 37 of the Building Work Contractors Act 1995 (the Building Work Contractors Act).[11]  The defective works were (improperly) identified by way of reference to a series of defects lists and a letter from the Architect.[12]

    [11] FDN 19.  The Owner’s preliminary challenge to the jurisdiction of this Court to determine the Builder’s claims for payment of domestic building works was determined in favour of the Builder.  See Cirocco Constructions Pty Ltd v Clarke [2015] SADC 98 (Cirocco v Clarke (No 1)) per Tilmouth DCJ.

    [12] Ibid [19].

19. Also on 26 May 2015, the Owner instituted third party proceedings[13] against the Architect claiming damages for breach of its retainer and common law duty of care for issuing PPCs 11 and 12 in circumstances where a notice of practical completion had not been issued, the Builder was allegedly not entitled to contract price adjustments for variations and provisional sums and the Architect had failed to certify amounts payable by the Builder to the Owner for allegedly defective building works. The defects complained of were not identified, with particulars to be provided after disclosure and inspection.[14]  In the first Scott Schedule filed on 23 December 2015, the Owner complained of 220 defects despite the Architect’s latest instruction’s to the Builder instructing the correction of only 14 of 32 identified items of incomplete or defective works. 

    [13] FDN 20.

    [14] Ibid [24c].

20. The Builder joined the Stone Supplier as a third party to the Owner’s cross action[15] on 19 July 2018 seeking contribution and/or an indemnity for any liability to the Owner for defects in the sandstone supplied by the Stone Supplier.

    [15] FDN 64.

21. Two matters in the procedural history are relevant to the issues to be determined at trial.

22. First, on 9 July 2015, Tilmouth DCJ gave judgment in favour of the Builder against the Owner in the sum of $99,484.79 plus interest of $6,185.19 on the Builder’s application for summary judgment for PPC 12.[16] His Honour found PPC 12 was validly issued (whereas he considered it was reasonably arguable that PPC 11 was not)[17] and there was no reasonable basis for defending the claim for PPC 12. This followed because his Honour found the Building Work Contractors Act does not displace common law remedies available for breaches of domestic building work contracts including the Building Contract here:[18]

    On its proper construction that contract is to be read as providing for the enforcement of the building contractor’s capacity to enforce certified payments, undiminished by any right of set-off, irrespective of the extant contest over remedial work, or the merits thereof. No infringement of s 42 of the Building Work Contractors Act occurs in this situation.

    [16] [2015] SADC 107 (Cirocco v Clarke (No 2)).

    [17] Because PPC 11 included a claim for the return of cash security as distinct from a claim for payment of for the works. Ibid [41]-[42].

    [18] Ibid at [49].

23. The remaining question as to the validity of PPC 11 is addressed in Part D below.  The underlying disputes as to the Builder’s entitlement of an adjustment of the contract price for approved variations, provisional and prime cost sums (PC Sums) and other miscellaneous claims are also addressed in Part D, as is the Owner’s minor delay claim.

24. The second relevant matter in the procedural history concerns the Owner’s evolving case on the stone defects.  When the defect claim for the new stone supplied and laid at the Owner’s residence was introduced on 23 December 2015 in the first Scott Schedule to the Owner’s amended cross action, it was confined to a complaint about the colour of the sandstone:[19]

    Sandstone to all external walls comprised discoloured stones and stones outside of the specified and agreed colour range.

    [19] Scott Schedule Item 15.1 to Second Defence and Cross Action (FDN 33).

25. The Owner amended her cross action against the Builder and third party claim against the Architect on stone defects in March and November 2017, December 2018 and July 2020.  The July 2020 amendments introduced significant new complaints about the quality of the workmanship in the laid stonework.

26. On 18 July 2022, this Court dismissed the Owner’s further application to amend her pleadings concerning the colour of the sandstone part way through the first part of the trial.[20] The Owner’s subsequent application for leave to appeal the Court’s ruling was dismissed by his Honour Justice Stanley on 3 November 2022,[21] shortly before the second part of the trial commenced. This procedural history is of importance because the Owner seeks in final submissions to advance a case on the colour of the sandstone that departs from her trial pleadings. The Builder and Architect insist she be confined to her pleaded case.

    [20] Ex tempore ruling 18 July 2022.

    [21] [2022] SASC 126.

    The Relevant Pleadings

27. The trial pleadings are identified in Annexure A of these reasons.[22] Where necessary, they are considered in detail in the context of the issues to be determined.

    [22] They include the pleadings the July trial commenced upon and those filed subsequently.

    The Arbitration

28. An arbitration (the Arbitration) was ordered by this Court on 12 October 2020[23] whereby 183 items of defective and/or incomplete works identified in the then ‘Compiled Scott Schedule’ were referred for determination by an arbitrator appointed by the Court, Ms Lolita Mohyla (the Arbitrator). The Arbitration trial comprised a two-day site visit and 27 days of hearing between 28 September and 21 December 2021 (excluding directions hearings). 

    [23] FDN 114.

29. The arbitral award (the Award) was delivered on 28 June 2022. The date for delivery of the Award was extended multiple times to permit adequate time for the significant volume of referred items and issues to be determined.

    The Trial

30. The trial was heard in two parts following the handing down of the Award. It was initially listed to start on 1 November 2021. 

31. Due to the prolongation of the Arbitration hearings and the continuing delay in delivery of the Award, the initial trial date was vacated and relisted on 15 March 2022 and then relisted again to commence on 4 July 2022.  The Owner’s application to amend her plea of loss and damages on stone defects was determined on 4 July 2022 and the start of the trial deferred again until 6 July 2022.

32. To preserve the July trial dates, the parties agreed to confine the issues to be determined to liability on the stone defects and for the balance of the issues[24] (including remedy and the measure of damages for any liability found on the stone defects) to be determined in a second part of the trial to be held in November 2022.

    [24] MFI A64.

    The Views

33. To enable the Court to better understand the evidence given by the witnesses, views were undertaken at the start of the July trial of the Owner’s residence, the external walls of a residence in Kermode Street, North Adelaide built of Tasmanian sandstone (Kermode Street), a residence in Dutton Terrace, another residence in Medindie, the exterior of the Adelaide Magistrates Court and the Stone Supplier’s depot at Gillman.

34. What was said and observed is not evidence in the trial.[25]

    [25] South Australian Railways Commissioner v Thomas (1951) 84 CLR 84 at 89.

    The Documentary Evidence

35. The documentary evidence is extensive.  During the course of the trial, the parties relied on documents in a common tender book as well as documents tendered separately and marked accordingly. At the beginning of the November trial, a consolidated list of documents to be relied on referable to the Owner’s List of Issues[26] was agreed upon the parties and marked MFI R53.[27]  It referred to both trial exhibits and Arbitration exhibits, helpfully including some references to the Award and Arbitration transcript. The referenced documents were admitted into evidence on the basis that any documents in the common tender book not expressly admitted and referenced in the transcript would be received de bene esse and identified by the document and page in the common tender book.  Where a document in the common tender book was not formally received in evidence but referred to in oral evidence or relied upon without express objection, it is appropriate the Court have regard to it, attributing whatever weight is appropriate.

    [26] FDN 240.

    [27] Documents in red were inserted at the Architect’s request.

    The Witnesses Generally

36. Generally, no serious criticism should be made of the poor recollection of witnesses as to the sequence of events and matters of detail that occurred between seven and ten years before they gave evidence. Generally, the witnesses were frank about their lack of recall or uncertainty about matters.

37. There are some matters of importance where the evidence of the witnesses diverges or aspects of their evidence is unsatisfactory warranting specific comment despite faded memories.  Generally, such comment is made in the context of the relevant topic having regard to the issues in contention.  No comment is made where it is not necessary to resolve differences between witnesses’ recollections and does not ultimately matter.

1. By agreement between counsel, the opposing parties divided the topics of cross-examination between them.  No criticism should be made about which opponent cross-examined (or did not) on any topic.

   The Owner’s Witnesses

   Mrs Clarke

2. Mrs Clarke is the Owner and the key witness in her case.  She gave evidence in trial over the course of seven days.  The Owner was thoroughly cross-examined by the Builder and Architect. Cross-examination by the Stone Supplier was limited.

3. The Owner’s closing submissions blandly describe her as a reliable witness who was open to the possibility that some events did not occur as she remembered and about having made errors, specifically with regard to the approval of the colour of the stone, a central factual dispute in the proceeding. The attempt to dismiss what she said or did not say during the ongoing defect correction works as having no bearing on whether the Builder or Architect were in breach of their duties is not compelling. 

4. The other parties submitted the Owner’s oral evidence should not be accepted and given no weight where contentious unless supported by other reliable evidence. The Builder criticised her for reconstruction, exaggeration and not telling the truth, highlighting her unsatisfactory evidence in cross-examination on the pleadings and her participation in the key meetings concerning the selection and approval of Tasmanian sandstone. The Architect prepared a schedule of the Owner’s evidence relevant to her credit that identified significant contradictions, inconsistencies and other difficulties with her oral evidence. ^[28]  The Stone Supplier adopts the Builder’s position as to the Owner’s poor credit and general unreliability.

   [28]    Schedule 2 to FDN 257.

5. The other parties’ general criticisms of the Owner as a witness should be accepted, despite the Owner’s contention that the Architect’s schedule is not an objective consolidated compendium of evidence references and omits important matters.[29]

   [29] FDN 279.

6. The Owner is a director and/or secretary of seven companies, has an extensive property portfolio (of both commercial and residential properties) and considerable experience in managing and overseeing commercial building and maintenance works.  She has held company positions for more than 30 years and held property for almost as long.  The Owner is capable, astute and a diligent record keeper.  She has a keen eye for detail and, as already stated, was precise in specifying her requirements, fastidious in her oversight of the building works and overly demanding as regards her requirements.   

7. However, in giving evidence the Owner presented with a poor recollection of events adverse to her case, and all too often in cross-examination was shown to be unreliable and evasive.  She repeatedly failed to answer questions directly.  At other times she had a remarkably precise memory of matters that favoured her case that was unpersuasive in the context of her own and other evidence.  At times her noticeable and repeated delay in answering difficult questions or her asking the question to be repeated in cross-examination was particularly unimpressive.  

8. It should not be accepted that the Owner was merely being careful in giving evidence of dated events.

9. At times the Owner embellished her answer to questions in a patent attempt to diminish the significance of a matter adverse to her interests or to show her opponents in a poor light.  An early example of this was her pointed evidence about the visit to Kermode Street and the meeting being cut short by the householder returning and providing an excuse for why she did not discuss with Mr Williams the colour and overall appearance of the stonework. The Owner’s suggestion that Mr Williams was rude and abandoned them should be rejected as an untrue.  The Owner’s attempt to deflect attention from a difficult issue for her case on joint size was transparent and unpersuasive.

10. Another example was the Owner’s repeated insistence she was warned not to attend the building site uninvited, and therefore only attended site infrequently and only drove past to see the progress from the street once or twice after construction began. The suggestion was she did not complain about the stonework because she had limited opportunity to see it. Her evidence in this regard was unsatisfactory bearing in mind she eventually conceded she knew the colour of the stone and quality of the stonework because of course she saw the works as they progressed to completion. 

11. On the topic of the discussions about the colour of Tasmanian sandstone and the selection ultimately agreed, the Owner’s evidence was particularly unsatisfactory in key respects.

12. First, the Owner said Mr Calabrese did not discuss his light, medium and dark ranges or show her stones indicating the full spectrum of his lighter range at the meeting on 30 April 2013 in the Stone Supplier’s Gillman yard (the Gillman Meeting).  That is despite her accepting that Mr Cirocco opened a pallet in front of them containing other generally light coloured stones. Her evidence was inconsistent with the accounts of Mr Calabrese, Mr Williams and Ms Crowden and common sense. Nonetheless the Owner said she discussed and acquiesced in the selection of colours ‘1’ to ‘2’ without knowing what colours ‘2’ to ‘8’ were because they were not defined and not shown to her. Her evidence is implausible.

13. Secondly, there was the Owner’s repeated inability to explain the inconsistency between her initial evidence about the outcome of Gillman Meeting as regards colour selection (that is colours ‘1’ to ‘2’) and her repeated reference in extensive dispute correspondence, her pleadings and answers to the Notice to Admit to different colour ranges,  ‘1’ to ‘3’ and ‘2’ to ‘3’ and ‘2’.

14. Next, there was the Owner’s implausible evidence that after June 2013 she complained about the colour of the sandstone repeatedly to Mr Williams as works progressed and were finalised, and her complaints were dismissed with disdain.  But no complaints were made about colour variation in any of her extensive defects lists or her correspondence about defects until February 2015.  This is significant because her first complaint was made six months after the Clarkes had moved into the house and more than two months after practical completion had (purportedly) been certified without objection.  By this time the certified defects liability period had expired for the first portion of the works and was due to expire for the church hall and garage works on 10 April 2015.

15. The Owner’s lack of complaint about stone colour is all the more implausible against the background of the Architect’s correspondence about her continuing failure to pay the certified claims.  The Architect identified some 17 pieces of correspondence between them in this period, during which the Owner did not ever provide an explanation for her non-payment.  The Owner’s explanation in evidence that she did not respond because she “felt so emotionally debilitated” and “didn’t feel [she] had the fortitude to cope with any further abuse”[30] should be rejected as hyperbole.

    [30] T1957.6-.34.

16. Another topic on which the Owner’s evidence was unsatisfactory and implausible concerns cleaning the stone to bleach or whiten it.  She denied anything was said about cleaning at the Gillman Meeting, and first said Mr Williams promised at the 18  June Meeting the stonework would be white when cleaned.  She then attributed this statement to Mr Calabrese. Her evidence was inconsistent with the evidence of the other witnesses (save her husband) and her later correspondence between May and October 2014 that makes clear her understanding was that cleaning would remove brown spots or the grey/black staining known as ‘quarry sap’. 

17. The Owner was evasive in cross-examination regarding her May 2015 instructions to Mr Allen of Heritage Stone Restorations (HSR). The documentary evidence shows that the Owner initially dealt with Mr Allen with regard to acid over spray remediation works in late 2014.  Mr Allen prepared HSR’s 11 May 2015 quotation for the partial replacement of discoloured sandstone for the Owner to agitate for the replacement of 71 darkened stones she did not like. Later in evidence the Owner tried to distance herself from this quotation, no doubt because her claims about stone defects had expanded considerably and there was ultimately a significant difference between its quantum and the costings for the same defects in Mr Allen’s supplementary costings report (the Allen Report) received in the Arbitration.[31] 

    [31] Arbitration Exhibit R182.

18. Overall, the Owner was not an objective or reliable witness of fact.  Her evidence was coloured, consciously or unconsciously, by her desire to advance her case.  Her grievances about the stone affected by ‘quarry sap’, the unsuccessful acid cleaning process and frustrations with the general defect correction works have infected the accuracy and reliability of her historical narrative throughout. 

19. In this regard, it is necessary to deal at some length with the strident criticisms made of the Owner’s conduct concerning the claim made on the Stone Supplier’s liability insurer for acid overspray damage given the attention this topic received in both the Arbitration and the trials.  A detailed chronology of the relevant events is set out in the Award.[32]

    [32] Award [2:5]-[2:470].

20. The Owner’s attempts to paint her conduct as reasonable are unsatisfactory having regard to the circumstances in which she retained the insurance proceeds paid directly to her.

21. First, substantial glass cleaning and painting works were carried out in November and December 2014 by the Builder’s subcontractors.  The Owner well knew the acid overspray remediation works were being done with urgency to address her strong complaints about the damage caused by the Stone Supplier despite the damage being superficial and the Stone Supplier’s insurer positively responding to a claim on the Stone Supplier’s insurance policy made with the Architect’s assistance on her behalf. 

22. The acid overspray remediation works were carried out on the Architect’s instruction to the Builder without the prior authority of the Stone Supplier’s insurer.  In cross-examination in the Arbitration, evidence emerged to the effect that the Owner took financial advantage of the informality with which the Architect, Builder and Stone Supplier dealt with the remediation works and pending insurance claim.  Her conduct in all the circumstances calls into question her integrity by her apparent double dealings.

23. As mentioned, it is plain the Architect was promoting the Owner’s interests by facilitating the expedition of a claim on the Stone Supplier’s insurance policy for acid damaged items.  An initial offer was received by the Architect but was not acted on. Then, in April 2015, as a result of the Owner having initiated private negotiations with Crawford (the loss adjuster for the Stone Supplier’s insurer), the Owner was paid a substantial interim settlement sum of $25,121.20 (including GST). The settlement was made on the basis that she would be responsible for directly paying the contractors already retained to remediate the damage without the insurer’s prior authority and without any admission of liability by the insurer or the Stone Supplier.

24. The two largest components of the settlement sum for painting[33] and glass cleaning[34] were quantified by reference to invoices received from the Builder’s subcontractors for works done.  Glass cleaning works had been fully carried out. The painting works were (on the Architect’s assessment) 95% complete when the Owner’s requested a break from trades over Christmas. The outstanding works had been left because they would be affected by the remediation of the acid damaged paving (that was still subject to assessment by the insurer), the Owner then reporting to Crawford, that despite the painting being incomplete, the painter had done an excellent job. 

    [33] $13,200.00 including GST.

    [34] $8,250.00 including GST.

25. The Owner did not pay either the glass cleaner or the painter, contrary to the terms of her interim settlement with the insurer. 

26. Her explanations as to why she did not in oral evidence in the Arbitration and at trial and in closing submissions are unsatisfactory. The Owner gave inconsistent accounts in examination-in-chief and in cross-examination in the Arbitration and at trial as to who she wrote to get the contractor’s invoice reissued to her. Her explanation she did not pay the contractor’s invoice because she thought that having it reissued was “the right thing to do”[35] was unpersuasive given her extensive commercial experience as a property owner and company director.  It was unnecessary because she had reached an interim settlement with the insurer based on the very invoice she had.

    [35] Arbitration P-494 [30].

27. It is, however, the position the Owner took with regard to the painter’s claim for payment that warrants the most serious criticism.  Her unwillingness to pay anything for this work until she received an appropriate invoice for less painting than had been done was not only unreasonable but inexplicable in circumstances where she was happy with the work, could have arranged the further works to be done or short paid the invoice. And she had received the entirety of the fund to pay the invoice on the basis of an invoice first issued to the Stone Supplier, then reissued to the Stone Supplier’s insurer.  

28. In any event, at the Owner’s request, another invoice was reissued to her at 50% of the original value claimed but it was still not to her satisfaction.  Her and Dr Clarke’s correspondence with the then deceased painter’s wife about non-payment is a discredit to them both. They obfuscated and gave a number of unmeritorious reasons as to why payment could not be made without an appropriate tax invoice. Their position was extraordinary given the evidence that on other occasions they were willing to deal directly and pay cash to subcontractors without any paperwork to apparently secure the commercial advantage of a lesser price.

29. The Owner’s submissions in closing that her conduct was reasonable and the criticisms made of her conduct are gratuitous and unfounded must be rejected. When the full circumstances are known, it is disingenuous to suggest that it was reasonable for the Owner not to pay these contractors for any of the reasons advanced, whether that reason was because the Owner had identified a charge for incomplete work on the painter’s invoices, did not know the trading terms on which they were engaged, or could not pay without the correct invoice or until all the work was done. 

30. For these reasons, the Owner’s evidence on contentious topics is to be scrutinised most carefully and generally, not preferred where it conflicts with the evidence of the other parties’ witnesses.

31. Further specifics of the Owner’s evidence are discussed below in the context of the relevant issues.

    Dr Clarke

32. Dr Ian Temple Clarke was presented as having less involvement in the management and day-to-day administration of their new residence than his wife.  Generally, the documentary evidence supports the position that he left his wife, the Owner, to communicate with the Architect. He said he did not see the Architect’s instructions or other correspondence.  He also said he was not involved in compiling the defects lists or in dealing with or responding to proposed solutions for the stone defects and left all this to his wife.[36]  He did however make most of the payments by cheque[37] and there is incidental correspondence showing his close involvement in design decisions, such as the internal stair handrail.

    [36] T749.11-750.29.

    [37] T154.5-.12.

33. Nonetheless, Dr Clarke did attend most site meetings, either with his wife or on occasion in her stead.  Indeed, the dispute over the finial on the church hall turns on his alleged lack of authority to communicate the Owner’s instructions to the Architect. Most critically, it is uncontroversial Dr Clarke attended the meetings in the Architect’s boardroom and at the Stone Supplier’s Gillman yard to select and approve the stone.  He also attended the meeting held on-site on 18 June 2013 (18 June Meeting) and was therefore a witness to these key events concerning the stone defects.

34. Unsurprisingly, given the extended passage of time between his evidence and the events in question, Dr Clarke’s recollection of pertinent detail was at times poor, and his recollections sometimes muddled. An example was his evidence in cross-examination about when he first met Associate Professor Danvers[38] and his inability to explain why he had written entries in his wife’s diary in 2013 and 2014 referring to Associate Professor Danvers.[39]  Generally, Dr Clarke is not to be criticised for the impact of time on the quality of his evidence and his inability to recall matters. 

    [38] T747.32-748.30 particularly 748.10-.15.

    [39] FDN 257 [2.10(a)].

35. There were, however, some aspects of his evidence that were unsatisfactory for other reasons.  It was apparent early on that Dr Clarke’s evidence tended to reflect the Owner’s position in the litigation on key issues rather than his independent recollection of what he saw, heard or did.  This was particularly evident when immediately after relaying a definitive detail about what someone said or did, he then could not remember anything more such as what anyone else said or did in response.  It was not plausible that he had no memory of any of these things but could recall the one conclusionary matter important to the Owner’s case.

36. Another example was his evidence in cross-examination by the Architect’s counsel about wanting light colours and sandstone being a natural product.  Dr Clarke gave evidence to the effect he is not a geologist and expects that the light-coloured stone “one wants and requires and pays for”[40] should come without imperfections and should “not vary in any way, shape or form”.  His denials in this context that neither Mr Calabrese nor the stone mason told him that sandstone is a natural product and carries with it variations were just not persuasive given the evidence of his involvement in the selection and approval of Tasmanian sandstone and its obvious characteristics.[41]

    [40] T753.3-.9.

    [41] T753.10-754.2.

37. Another unsatisfactory feature of Dr Clarke’s evidence was his tendency to recount his opinion of events and embellish them such as his evidence of the 18 June Meeting.  He said in examination-in-chief that Mr Williams and Mr Cirocco assured him and the Owner that an application of acid by Mr Calabrese would result in “a wonderful white house”.[42]  In cross-examination by the Builder’s counsel, Dr Clarke affirmed three times that these were the words spoken but then when pressed changed his position and said they were Mr Calabrese’s words.[43]

    [42] T729.4-.8 and T729.21-.23.

    [43] T735.35-736.20; T737.7-.9.

38. Having observed Mr Calabrese give evidence, this in not language he would ever use.  Nor should it be accepted that anyone said these words at this meeting.  These words are Dr Clarke’s and reflect his opinion at best based on a misunderstanding about what Mr Calabrese said about dealing with ‘quarry sap’ or are an unreliable reconstruction.

39. It is necessary to be cautious about Dr Clarke’s evidence on important issues where it supports the Owner’s version but conflicts with the evidence of other more reliable witnesses whose evidence generally should therefore be preferred.

    Associate Professor Danvers

40. The Owner relies on two expert reports prepared by Associate Professor Danvers to prove the stone defects (among others) and consequent breaches of contract and duties alleged against the Builder and the Architect. 

41. The first report is dated 3 September 2019 (First Danvers Report)[44] and the second, titled “Final Report on the Recording of Defects in Stone Walls” is dated 25 May 2022 (Second Danvers Report).[45] 

    [44] MFI R3.410.

    [45] Exhibit R3.411. A draft of this report was prepared in May 2021.

1. Associate Professor Danvers also provided the information compiled in the Schedule of Defective Stone prepared by the Owner’s solicitor, Ms White, that ultimately comprises Annexure B to the Owner’s primary pleadings (Owner’s Annexure B).[46]  It is identical to Attachment 1 to the Second Danvers Report.

   [46] See [1389] below.

2. The First Danvers Report was prepared following two inspections of the stonework in June and August 2019 and expresses opinions about deficiencies in the stonework generally and in response to specific questions he was instructed to answer. 

3. The Second Danvers Report was prepared following further inspections in September, October and November 2019 involving a stone by stone assessment of alleged defects. This assessment involved two elements. First, a visual comparison to a sample stone (‘SC 135’) ^[47] that was instructed to be the required stone colour and secondly, as to whether the stone was chipped or damaged.  Ms White prepared diagrams of each wall identifying the individual stones and assisted Associate Professor Danvers’ inspections by confirming and recording his identification of defects for individual stone faces on the diagrams as he called them out for her to record.  Ms White and her staff later finalised the diagrams into the wall by wall schedule comprising the Owner’s Annexure B. 

   [47] See [844] and following below.

4. Associate Professor Danvers Reports are therefore fundamental to proof of the Owner’s case that the built stonework does not conform with the varied contractual requirements for new stonework.

5. Associate Professor Danvers has some 60 years’ experience as an architect, specialising in heritage restoration and adaptation, urban design and conservation.  His qualifications, experience, publications and awards in these fields as set out in his profile are extensive and impressive.[48]  His specialist expertise as an architect is predominantly in the restoration of heritage buildings and public projects and his work in residential design has involved major alterations and new additions to heritage listed houses.  He has not supervised new domestic home constructions for some 40 years, focussing on other priorities in his illustrious career.

   [48] Attachment 2 to Exhibit R3.411.

6. Associate Professor Danvers’ expertise was challenged by the Builder. The Architect went further and criticised his opinions as seriously doubtful, his independence and impartiality as questionable and submits he has applied “an unrealistic and unachievable metric”[49] as the standard for assessing the laid stonework as defective.  The Stone Supplier adopts the Builder’s position.

   [49] Architect’s Stone Closing [2.12].

7. Serious and extensive challenges were made to the admissibility of both of Associate Professor Danvers reports on multiple grounds.  Most of the objections were properly taken.

8. Since the constituent facts need not have been fully proved at the time Associate Professor Danvers reports were tendered, they were received provisionally and conditionally.

   The First Danvers Report

9. In face of the opposing parties’ objections to all and, in the alternative, certain parts of the First Danvers Report, the Owner withdrew a number of contentious passages.  The parts that were withdrawn and others the Owner pressed but the Court ruled as inadmissible were ‘red-lined’ out.  Without objection, leave was given for the Owner to examine on limited topics.[50] 

   [50] T873-888.

10. What remained was either in the nature of Associate Professor Danvers’ evidence of factual matters (that is, his instructions, his experience with sandstone, his preliminary investigations, site inspections and his observations) or his opinions about defects he observed in the stonework.  These parts of the First Danvers Report should be accepted as admissible evidence at trial and are to be afforded whatever weight is appropriate in all the circumstances.[51]

    [51] Despite receipt of these parts of the First Danvers Report as evidence in the trial, his report is still referred to as MFI 410 for convenience.

11. To address the properly made objection that Associate Professor Danvers had failed to identify his assumptions of primary fact, the Owner separately tendered his written instructions in the form of a letter from the Owner’s solicitors.[52]  This letter set out the assumptions he was instructed to make.  Whilst it nullifies the objection about the identification of his assumptions, it ultimately gives rise to serious difficulties with the basis of his opinions given the disconformity between his instructed assumptions and what are the proven contractual requirements for Tasmanian sandstone. 

    [52] Exhibit R25.

12. The balance of the First Danvers Report was the subject of the following further objections.

13. The first was that the Owner had failed to demonstrate that the assessment of stone colour is a recognised field of specialised knowledge.  The second was that it had not been demonstrated that Associate Professor Danvers has relevant experience or expertise to qualify as an expert in assessing stone colour even if this were a recognised field of specialised knowledge.  The third was that the assessment of whether the laid stone met the requirements of the varied Building Contract is the ultimate issue for the trial judge, not for an expert.  The final objection was that his opinions are largely irrelevant because he was instructed to assess the laid stonework on criteria unconnected to the Owner’s pleaded case or the proven contractual requirements for Tasmanian sandstone. 

14. The First Danvers Report was marked for identification and the trial proceeded on the basis that the Court would rule on the admissibility of the balance of this report when the evidence had concluded and as part of the reasons for judgment.

    The Second Danvers Report

15. The Second Danvers Report was received as an exhibit subject to the same overriding objections made by the opposing parties to its admissibility as were made for the balance of the First Danvers Report.

16. The parties’ submissions as to the admissibility of the Danvers Report were extensive.[53]

    Ruling - Field of Expertise

    [53] The Owner’s written submissions are made in Appendix B to the Owner’s Stone Closing.  The Builder’s submissions are found in section 50 of its Stone Closing.  The Architect took a different approach and challenged the weight and relevance of Associate Professor Danvers’ evidence.

17. Whether there is a recognised field of specialised expertise is a question of fact that depends on the precise question on which expert opinion is sought and the relevant evidence.

18. Confining the inquiry to the assessment of the colour of sandstone, as the Builder seeks to do, is too blunt a question. 

19. As a general proposition, it should be accepted that a sufficient degree of specialised knowledge is required to express opinions about the built stonework and aspects of the specification to render expert evidence admissible.  Here relevant matters include the origin, nature and use of specific stone as a building material, what constitutes ashlar stonework, jointing and pointing techniques, the constituent ingredients of different mortar mixes and questions of trade custom and proper professional standards in supervising the construction of stonework.

    Ruling - His Expertise

20. Associate Professor Danvers’ expertise as an experienced architect is not challenged.  The Builder accepts that Associate Professor Danvers chooses colours as part of his professional practice but says that does not qualify him to compare stone colours on a building.  The Owner contends otherwise and frames the questions for opinion as to the use of stone in the construction of stone walls and in the assessment of stone as a building material, including consistency of colour.

21. By reason of his professional qualifications and practice, Associate Professor Danvers has sufficient expertise and experience to express opinions about built stonework, considerably more than an ordinary person.  It should be accepted that generally he is qualified to express opinions about the quality of the built stonework (ie workmanship, chips, surface damage). This of course is an entirely different question from the reliability of his opinions or the weight that should be given to any opinions he has expressed in the face of conflicting evidence.

22. As to stone colour, the opinions Associate Professor Danvers has expressed in the Owner’s Annexure B are in the nature of non-expert opinion evidence as conveniently described by the learned author of Cross on Evidence.[54]They are observations he has made of the stones he has inspected, albeit informed by his professional perception, recollection and classification of the matters he had identified on the basis of the assumptions he was instructed to make.

    [54] JD Heydon, (Lexis Nexis, 12^th ed, 2020) [29025].

23. Associate Professor Danvers frankly admits a lack of expertise in the chemistry of ‘quarry sap’ and its treatment, having not experienced it before or with which he said he was not “very familiar”.[55]  His uncertainty as to whether his observations of pale grey stones are due to ‘quarry sap’ should be noted and accepted as disqualifying him from expressing any expert opinion on the subject of ‘quarry sap’.[56] 

    Ruling - Assumptions of Primary Fact

    [55] T937.12-.26.

    [56] See page 2351 of the First Danvers Report [section 7.3(b)(ii)].

24. The assumptions of primary fact upon which Associate Professor Danvers has expressed his opinions have been adequately identified where relevant.

    Ruling - Proof of Assumed Facts

25. The Owner has not proved the basis for almost all of the opinions expressed by Associate Professor Danvers in his reports about defects in the stonework. 

26. Most fundamentally, a reasonably close match to the sample stone ‘SC 135’ is not the varied contractual requirement for stone colour. Therefore, Associate Professor Danvers’ opinions as to which stones conform and which are defective as to colour are inadmissible and should not be received.

27. It follows that his opinions about the number and extent of non-conforming stones as to colour, the stones indicated as defective in Appendices B1 and B2 to the First Danvers Report and consequential opinions about the quality of the stonework and what a competent architect should have done in the instructed circumstances are also inadmissible and should not be received.[57] 

    [57] See pages 2347, 2348, 2350-2 [section 7.1.b), 7.2, 7.3(b)(i) and (c)] and 2367-2372.

28. The same follows for much of the Associate Professor Danvers’ assessment of non-conforming stone in the Owner’s Annexure B, which forms the basis of the Owner’s case on breach for the stone defects.  Specifically, the third (Conforms), the fourth (Colour)[58] and final (Defective) columns of the Owner’s Annexure B are inadmissible and should not be received.

    [58] And codes CD, CL. CG and SP are not relevant.

29. Since the basis for Associate Professor Danvers’ opinion that the mortar colour is too dark is his unproven assumption that it should match a lighter stone colour, it is also inadmissible.[59]

    [59] See pages 2348, 2350, 2351, 2352 and 2353.

30. The Owner has also not proven that fine 5mm joints are a contractual requirement. The instruction to change joints size to 10mm is on the evidence properly explained and does not constitute a breach of the Architect’s duties.  Therefore Associate Professor Danvers’ opinion that the size of the 10mm jointing renders all of the stonework defective is unproven and inadmissible and should not be received.  Nor should his consequential opinions about the quality of the stonework because it is built with 10mm joints be received.[60]

    [60] See pages 2348, 2349 [section 6], 2351 [sections 7.2, 7,3(b)(i) and (c)].

31. However, the inadmissibility of much of his assessment of the stonework does not render his other opinions about the nature of ashlar stonework and its requirements, or standards of workmanship and materials inadmissible where relevant and based on his proven expertise, experience or observations.  Accordingly, these parts of the Second Danvers Report are to be accepted as admissible evidence in the trial.

    Ruling - Independence and Impartiality

32. The Architect criticised Associate Professor Danvers’ independence and impartiality as questionable in circumstances where it was not disclosed until trial that Dr Clarke and he were members of the same private club where they met five or six time a year.  Further, the Clarkes could not explain references to his name and phone number in the Owner’s 2013 and 2014 diaries and his involvement in advising the Clarkes on another alleged defect earlier, at a time when no stone defects were identified (which was also not disclosed until trial).

33. The lack of disclosure is unsatisfactory. However, having observed Associate Professor Danvers give evidence and be thoroughly cross-examined, there is no good reason to doubt his impartiality and independence on this ground. 

34. However, it was difficult not to doubt his impartiality and independence for other reasons.  He sought to impose a quality standard for stonework at the Owner’s residence that was not met by work which he described as a good example of fine ashlar stonework, in circumstances where he did not know or ask why the relevant Architect’s instruction was issued, he was prepared to accept a single stone as the control for assessing stone colour and apply an unrealistic metric which he frankly acknowledged would be difficult for the Stone Supplier to fulfil having viewed the Stone Supplier’s light range of Tasmanian sandstone.  And he made no allowances for inspecting the stonework some six years after it was laid knowing sandstone darkens with age due to the oxidisation of minerals in exposed faces.[61]

    Reliability

    [61] First Danvers Report page 2345.

35. For the following reasons, the Builder’s criticisms of Associate Professor Danvers’ methodology as insufficiently scientific and unreliable should be accepted as well made.  If Associate Professor Danvers’ assessment of colour had been relevant, it should be afforded little weight by reason of his methodology.

36. Associate Professor Danvers undertook two assessments of the stonework, both of which ultimately find their way into his final assessment in the Owner’s Annexure B.

37. The methodology for his first assessment of overall conformity is described in detail in the First Danvers Report and again summarily in the Second Danvers Report as a stone by stone analysis of defects.  Associate Professor Danvers said he adopted a similar methodology for the second assessment as the first, generally confirming his earlier records of his observations in the form of hand sketches.

38. On his own account, his methodology was “experimental, trial and error”.[62]

    [62] T977.1-.5.

39. On his second site visit Associate Professor Danvers selected a paint colour swatch to match the sample stone ‘SC 135’ and began using it as the basis of comparison for conforming and non-conforming stone colour.  At some point he stopped using the swatch and used his memory to assess colour conformance.

40. His visual assessment was performed from the ground, despite some of the stone being very high off the ground and areas being so difficult to view that he could not sensibly photograph them.  Associate Professor Danvers frankly acknowledged the following limitations of his assessment:[63]

    … limitations inherent in viewing walls in different lights and from various distance sand angles.

    [63] Second Danvers Report page 2378.

41. He made hand drawn sketches.  In his stone by stone inspections, reference was made to these earlier records of observations made on his earlier visits in different light conditions, “starting in overcast conditions”[64] and varying sunlight during the course of the inspection.  Associate Professor Danvers reports that the first day of the second assessment was a “better day”, “with satisfactory light levels on all walls”.[65]

    [64] First Danvers Report page 2348

    [65] Second Danvers Report page 2376.

42. Despite his view that a portable stone sample was important for assessing stone colour, Associate Professor Danvers used a paint swatch as the control for assessing stone colour when he started the exercise. The swatch was not in evidence, having been ‘lost’.  It was of a different material and therefore different in texture and consistency from stone and reflected light differently.  It was also a single definitive colour.  None of these characteristics favour a paint swatch as a reliable control for assessing stone colour.

43. Associate Professor Danvers then abandoned the paint swatch and used his memory.  Whilst it should be accepted the human eye can detect subtle differences in shades of colour, it is notoriously difficult to remember colours accurately when both colours cannot be seen at once.

44. The distance from which Associate Professor Danvers viewed individual stones from the ground varied.  His assessment of distant and difficult to see stones is questionable, particularly in changing light conditions.

    Ms White

45. Ms Kathryn White was the Owner’s solicitor from 2015 until August 2021.  She made an affidavit on 15 July 2022 that was read into evidence[66] deposing to two matters.  The first concerns samples of Tasmanian sandstone Mr Calabrese delivered to her office on 28 August 2015 that were received in evidence (Exhibit R31) and the second, her participation in recording Associate Professor Danvers’ assessment of the stonework in October and November 2019.  Ms White prepared the form of the schedule of defective stone that ultimately became the Owners Annexure B.

    [66] Exhibit R30.

46. Whilst Ms White’s assistance in preparing the Owner’s Annexure B is not contentious, her evidence about Exhibit R31 is.  In evidence, Mr Calabrese disagreed that the label she had placed on the second lightest stone was the correct colour category.  He identified it as colour ‘2’ to ‘3’, not a ‘3’ to ‘4’ as it was labelled.  Mr Calabrese’s evidence should be preferred for the reasons discussed below[67] and Ms White’s recording of what he supposedly said be treated as mistaken.

    [67] See [825]-[843] below.

    Mr Prider

47. Mr Philip Prider is a highly experienced structural engineer with impressive credentials as a testifying independent expert in legal proceedings.  Mr Prider was instructed to prepare a report addressing the extent to which the stonework was loadbearing and required propping if part or all of it was to be replaced. 

48. His written report dated 3 June 2022[68] was received in evidence without objection.  It is unnecessary to address Mr Prider’s report because the Owner has not proved any entitlement to have a substantial part or the entirety of the stonework replaced.

    [68] Exhibit R51.

    Mr Pentelow

49. Mr Sam Pentelow is a director and principal of Stone Ideas Pty Ltd, a specialist in heritage masonry restoration, established in about 2001.   Mr Pentelow identified HSR as Stone Ideas’ only true competitor in Adelaide.

50. Mr Pentelow was called as a witness for the Owner in the November trial and his tender estimates dated 18 November 2019 and 1 June 2022[69] were relied on for the cost of remediating the stone defects. 

    [69] Exhibits R49 and R50.

51. It is not necessary to consider Mr Pentelow’s evidence further because the Owner has not proved any entitlement to have a substantial part or the entirety of the stonework replaced.

    Mr Allen

52. Mr William (Will) Allen’s qualifications, experience and expertise in estimating and costing remedial building work is set out more fully in the Award.[70]

    [70] Award [1:145]-[1:147].

53. In the Arbitration, the Owner relied on a series of purported ‘expert’ reports prepared by Mr Allen that opined on remediation costs for the various defect and incomplete items referred to the Arbitrator for determination, despite his prior dealings with the Owner both directly and through the Architect.  Following a challenge by the Builder and the Architect to his expertise, on the voir dire the Arbitrator ruled Mr Allen’s reports were inadmissible for non-compliance with the Court rules for expert reports.  The Arbitrator then ruled that she would accept a supplementary report that was later received in evidence and referred to as the Allen Report.[71] 

    [71] Award [1:151]

1. The parties should be heard on the form of the proposed declarations, orders and judgment, interest and the question of costs.

   
   

   ANNEXURE A – FINAL TRIAL PLEADINGS
   
   

Builder’s Statement of Claim	FDN 2	16 April 2015
Builder’s Statement of Third Party Claim	FDN 65	19 July 2018
Stone Supplier’s Second Defence to Cross Action	FDN 91	20 April 2020
Owner’s Rejoinder (Revision 1) to the Reply to Fifth Defence and Reply (Revision 1) to the Defence to Sixth Cross Action	FDN 116	22 December 2020
Builder’s Reply to Fifth Defence and Defence to Seventh Cross Action	FDN 144	7 September 2021
Owner’s Fifth Defence and Seventh Cross Action	FDN 201	6 July 2022
Owner’s Ninth Third Party Statement of Claim	FDN 216	20 July 2022
Architect’s Eighth Defence to Ninth Third Party Statement of Claim	FDN 248	26 October 2022
Owner’s Reply (Revision 3) to Eighth Defence to Ninth Third Party Statement of Claim	FDN 268	11 November 2022

ANNEXURE B – AWARD FINDINGS NOT ADOPTED

Practical Completion

1. Award [1:160] : “thereby invoking Practical Completion under the Contract”.

   CSS Item 1.11 - Doors

2. Award [2:932] and [2:939], that for CSS Item 1.11 the Architect was responsible for the Builder’s failure to install doors DG16 and DG19 of the specified thickness.

   CSS Item 14.4 – Cellar Vent

3. The findings in Award [2:1185][915] and [2:1186] that there was a valid contractual direction to vary the cellar vent works and therefore no defect should not be adopted and substituted by the Following findings.

   [915] Dot points 8, 9 and 10.

4. As regards Award [2:1190], the works for CSS Item 14.4 are defective works and partially incomplete (provision of second ventilation duct (air supply)).

5. As regards Award [2:1191], the works for CSS Item 14.4 did not comply with the statutory warranties in s 32(2)(a) to (c) of the Building Work Contractors Act.

6. As regards Award [2:1192], the incomplete works for CSS Item 14.4 were caused by the Builder.

7. As regards Award [2:1193] and [2:1194], the parties have agreed the cost of remedial works for CSS item 14.4 as being $2,089.80 excluding GST.

   CSS Item 14.5 – Cracking to Cellar Floor

8. Award [2:1677] and [2:1678] : that item CSS 14.5 was within the original contract by reason of clause D.04.09.

   ANNEXURE C – FINAL SUMMARY AWARD DETERMINATIONS

CSS Item No	Item Details	5.1 Within Contract Scope	5.2 Workmanship			5.3 Defect Caused by Builder /Other	5.4 Remedial Work Required	5.5 Cost of Remedial Work $/c (Ex GST)	5.6 Alternative Solution: Rectification/Cost	Award Page/ Judgment Paragraph	Liability
			Defect	Incomplete Work	Statutory Warranties
1	GENERALLY - INTERNALLY
1.1	Integrated or separate heat shrouds	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-290
1.2	Window casements – acid spray	YES	N/A	YES (part)	COMPLIES	YES	YES	2,241.80	N/A	2-1, 2-22, 2-30
1.3	Movement around second fix items/Painting items	YES	YES	YES (part)	NO: s32(2)(a)	YES	YES	1,805.10	N/A	2-130, 2-134
1.4	Compressible door & window seals	YES	N/A	YES (part)	COMPLIES	YES	YES	1,178.37	N/A	2-1, 2-40
1.6	Warranties, Certificates, Guarantees	YES	N/A	YES (part)	NO: s32(2)(a) & (c) (part)	YES (part)	YES	NIL	N/A	2-292
1.7	Marble cut outs	NO	N/A	NO	COMPLIES	N/A	N/A	N/A	N/A	2-111
1.9	Sealing marble & stone surfaces	YES	N/A	NO	COMPLIES	N/A	N/A	N/A	N/A	2-111, 2-115
1.10	Insulation over ceiling manholes	YES	N/A	NO	COMPLIES	N/A	N/A	N/A	N/A	2-305
1.11 Pl: 26e	Doors & door frames	YES	YES (part)	N/A	NO: s32(2)(a) (part)	YES (part)/ ARCH / TJ	YES	3,880.80	N/A	2-196
1.12	Wrought iron doors & insect mesh	YES	N/A	NO	COMPLIES	N/A	N/A	N/A	N/A	2-220
2	MAIN BEDROOM & ENSUITE
2.1	Painting of PVC pipes	NO	NO	NO	Complies	N/A	N/A	N/A	N/A	2-212
2.2	Geberit unit	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	NIL	132.00 (Owner reimbursement)	N/A	2-238
2.3	Acoustic window system	Not Pressed	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A
2.4	Raven acoustic seals	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-308
2.5	Caulking to bath apron packers	YES	YES	N/A	NO: s32(2)(a)	YES	YES	78.98	N/A	2-310
2.6	Vanity basin cracked	NO	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-313
2.7	Painted edge ceiling strip	YES	YES	N/A	NO: s32(2)(a)	YES	YES	106.48	N/A	2-315
2.8	Plaster under towel rail	YES	NO	N/A	COMPLIES	YES (remediated)	NIL	NIL	N/A	2-318
2.9 #	Ducting for exhaust fan & whirlygigs	YES	N/A	YES (part)	NO: s32(2)(a), (b), (c) (part)	YES	YES	2089.80	N/A	2-257
3	ENTRY HALL
3.1	Plastering of internal walls	YES	YES	N/A	NO: s32(2)(a)	YES	YES	532.40	N/A	2-320
4	SITTING/FORMAL DINING
4.1	Painting of double entry doors	YES	YES	N/A	NO: s32(2)(a)	YES	YES	360.45	N/A	2-170, 2-172
4.2	Paint to skirting join	YES	YES	N/A	NO: s32(2)(a)	YES	YES	95.48	N/A	2-130, 2-143
4.3	Window shutter	YES	YES	N/A	YES	YES	YES	56.98	N/A	2-215
4.4	Chimney plastering	YES	NO	NO	YES	YES (remediated)	NIL	NIL	N/A	2-323
5	POWDER ROOM
5.1	Geberit unit	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	NIL	Refer CSS 2.2	N/A	2-238
5.2	Mirror installation	YES	YES	N/A	NO: s32(2)(a)	YES	YES	320.10	N/A	2-325
5.3 #	Ducting for exhaust fan & whirlygigs	YES	N/A	YES (part)	NO: s32(2)(a), (b), (c) (part)	YES	YES	2089.80	N/A	2-257
6	LIVING/DINING/KITCHEN
6.1	Movement cracks to skirtings, architraves	YES	YES	N/A	NO: s32(2)(a)	YES	YES	53.90	N/A	2-130, 2-141, 2-144
6.2	Finish to window frame	NO	N/A	N/A	N/A	N/A	N/A	N/A	2-130, 2-164
6.6 Pl: 26(ca)	Marble splashback	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-111, 2-119
6.8	Plaster wall finish	YES	YES	N/A	NO: s32(2)(a)	YES	YES	330.00	N/A	2-239
6.9	Grain of timber window frame	YES	YES	N/A	NO: s32(2)(a)	YES	YES	82.50	N/A	2-332
6.10	Movement lines to wall/ceiling junctions	YES	YES	N/A	NO: s32(2)(a)	YES	YES	143.88	N/A	2-130, 2-137, 2-140
7	PANTRY
7.2	Shelving cracks	YES	YES	N/A	NO: s32(2)(a)	YES	YES	89.76	N/A	2-130, 2-155
7.3	PVC flange to hot water pipe	YES	N/A	NO	COMPLIES	N/A	N/A	N/A	N/A	2-335
7.4	PVC waste pipe finish	NO	NO	NO	COMPLIES	N/A	N/A	N/A	N/A	2-212
8	LAUNDRY
8.1	Waste pipe finish	NO	NO	NO	COMPLIES	N/A	N/A	N/A	N/A	2-212
8.3	Control joint finish	YES	YES	N/A	NO: s32(2)(a)	YES	YES	206.80	N/A	2-130, 2-155, 2-156
8.4	Crack to window frame	YES	YES	N/A	NO: s32(2)(a)	YES	YES	101.20	N/A	2-130, 2-137, 2-138
8.6	Movement gap between joinery and wall/ceilings	YES	YES	N/A	NO: s32(2)(a)	YES	YES	155.10	N/A	2-130, 2-155, 2-159
8.7	Supply and installation of high-level windows	Not Pressed	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A
9	STAIR
9.2	Plaster finish	YES	YES	N/A	COMPLIES	NO / TJ (liability)	YES	NIL	N/A	2-337
10	UPPER HALL
10.2	Wrought iron panel	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	YES	NIL	N/A	2-220, 2-225
10.6	Movement cracks to cornice	YES	YES	N/A	NO: s32(2)(a)	YES	YES	477.27	N/A	2-130, 2-137
10.7	Movement crack to Bedroom door/architrave	YES	YES	N/A	NO: s32(2)(a)	YES	YES	70.62	N/A	2-130, 2-143, 2-145
10.8	Movement crack to Study door/architrave	YES	NO	N/A	N/A	N/A	N/A	N/A	N/A	2-130, 2-143, 2-146
10.9	Movement crack to Study door/architrave	YES	NO	N/A	N/A	N/A	N/A	N/A	N/A	2-130, 2-143, 2-147
10.10	Nail indentations to cornice	YES	YES (part)	N/A	NO: s32(2)(a)	YES	YES	98.70	N/A	2-344
11	ROS’S STUDY
11.1	Movement crack to architrave	YES	YES	N/A	NO: s32(2)(a)	YES	YES	70.62	N/A	2-130, 2-143, 2-148
11.2	Splintering of wood frame of balcony doors	YES	YES	N/A	NO: s32(2)(a)	YES	YES	127.60	N/A	2-130, 2-164, 2-165
11.3	Cracking of window ledge and frame	YES	YES	N/A	NO: s32(2)(a)	YES	YES	371.80	N/A	2-130, 2-162
11.4	Cracking to architrave of Storeroom door	YES	YES	N/A	NO: s32(2)(a)	YES	YES	70.62	N/A	2-130, 2-143, 2-150
11.5	Cracking of balcony door architrave	YES	YES	N/A	NO: s32(2)(a)	YES	YES	70.62	N/A	2-130, 2-164, 2-166
11.9	White plaster staining	YES	YES	N/A	NO: s32(2)(a)	YES	YES	82.50	N/A	2-347
11.10	Caulking to side of cupboards	YES	YES	N/A	NO: s32(2)(a)	YES	YES	149.60	N/A	2-130, 2-155, 2-160
11.11	Hall/Study door warped	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	YES	154.66	YES / 1,202.27	2-349
11A	IAN’S STUDY/BEDROOM 2
11A.1	Window shutters	YES	YES	N/A	COMPLIES	YES	YES	127.60	N/A	2-215
12	GUEST BEDROOM/ BEDROOM 3
12.1	Cracking of cornices	YES	YES	N/A	NO: s32(2)(a)	YES	YES	206.80	N/A	2-130, 2-137, 2-141
12.2	Crack to window ledge	YES	YES	N/A	NO: s32(2)(a)	YES	YES	69.52	N/A	2-130, 2-165, 2-168
12.4	Cracking between architrave and skirting	YES	YES (remediated)	N/A	COMPLIES	YES (remediated)	NIL	NIL	N/A	2-130, 2-143, 2-151
12.5	Window shutters	YES	YES	N/A	COMPLIES	YES	YES	56.98	N/A	2-215
13	BATHROOM
13.1	Geberit unit	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	NIL	Refer CSS 2.2	N/A	2-238
13.2	Finish to door edge	YES	YES	N/A	NO: s32(2)(a)	YES	YES	164.56	N/A	2-353
13.3 #	Ducting for exhaust fan & whirlygigs	YES	N/A	YES (part)	NO: s32(2)(a) & (b) (part)	YES	YES	2089.80	N/A	2-257
14	CELLAR STAIR & CELLAR
14.4 #	UPVC Cellar vent pipes	YES	YES	YES (part)	NO	YES	YES	2,089.80	N/A	2-257, 2-265	60% Builder 40% Architect
14.4A	Cellar door	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-356
14.5	Cracking to cellar floor	YES	NO	N/A	COMPLIES	YES (remediated)	NIL	N/A	N/A	2-358
14.5A	Waterproofing of cellar walls	YES (part)	N/A	YES (part)	COMPLIES	NO	YES	NIL	N/A	2-365
14.6	Ceiling insulation	YES	NO	NO	COMPLIES	N/A	N/A	N/A	N/A	2-370
15	EXTERNALLY - GENERALLY
15.2	Rust stains to bluestone paving	YES	YES	N/A	NO: s32(2)(a)	YES	YES	145.45	N/A	2-1, 2-46, 2-60
15.3	Paint to Viscourse	YES	YES (part)	N/A	NO: s32(2)(a) (part)	YES	YES	846.36	YES / 540.00	2-372
15.4	Downpipes	YES	N/A	YES (part)	NO: s32(2)(a) & (b)	YES	YES	1,260.09	N/A	2-1, 2-22, 2-34
15.5	Control joint	YES	N/A	YES (part)	NO: s32(2)(a) (part)	YES	YES	159.50	N/A	2-378
15.7	Damaged slate sills	YES (part)	YES (part)	N/A	COMPLIES	YES	YES	1,667.20	N/A	2-1, 2-71, 2-74
15.8	Gaps under window	Not Pressed	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A
15.12	Retractable clothesline	YES	N/A	YES (part)	NO: s32(2)(a) (part)	YES (part)	YES	NIL	N/A	2-382
15.13	Acid damage to front door threshold	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-1, 2-71, 2-78
15.14	Acid damage to paving	YES (part)	YES (part)	N/A	COMPLIES	YES	YES	4,015.00	N/A	2-1, 2-46, 2-62
15.15	Bluestone paving selection	NO	N/A	N/A	N/A	N/A	N/A	N/A	N/A	2-271, 2-281
15.16 #	Footing render	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	YES	750.00	N/A	2-387
15.17	Mintaro slate door sills/ Verandah edge	YES	YES (part)	N/A	NO: s32(2)(a) (part)	YES (part)	N/A	NIL	YES/ UTD/TJ	2-392
15.18	Gas pipes	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-398
16	EXTERNAL – REAR
16.1	Paving drainage	YES (part)	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-271, 2-282
16.2	Refer 16.1	Repeats CSS 16.1	N/A	N/A	N/A	N/A	N/A	N/A	N/A	2-400
16.5 Pl: 26(cb)	Cracks to window masonry of church hall	YES	N/A	YES	NO: s32(2)(a)	YES	YES	2,219.80	N/A	3-74
16.6	Timber boards to Hall link	Not Pressed	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A
16.7	Paint spillage to bluestone paving	YES	YES	N/A	NO: s32(2)(a)	YES	YES	UTD	N/A	2-400
16.8	Joint between new Garage & Hall	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-403
16.14	Gap between pavers and Dining Room French doors	NO	N/A	N/A	N/A	N/A	N/A	N/A	N/A	2-271, 2-285
16.16	Wrought iron gate	Not Pressed	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A
16.18	Fixings to glass pool fencing	YES	YES (part)	N/A	COMPLIES	YES	YES	NIL	N/A	2-1, 2-83
16.19	Pool fencing	YES	YES	N/A	NO: s32(2)(b)	YES	YES	1,174.80	N/A	2-1, 2-83, 2-92
16.20	Rendering to west boundary wall	NO	N/A	N/A	N/A	N/A	N/A	N/A	N/A	2-271, 2-287
16.24.1	Acid damage to threshold	YES (part)	YES (part)	N/A	COMPLIES	YES	YES	831.60	N/A	2-1, 2-71, 2-80
16.24.2	Aluminium strip to threshold of Formal Dining	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-1, 2-40, 2-44
16.24.3	Downpipe threaders	Not Pressed	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A
16.24.4	Glazing bead to central window	NO	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-407
16.24.5	Painting to rendered external masonry Living Room wall	YES	N/A	YES	NO: s32(2)(a)	YES	YES	678.70	N/A	2-409
16.25	COURTYARD & REAR VERANDAH
16.25.4	Timber fascias to Outdoor Entertaining & Hall link	YES	YES	N/A	NO: s32(2)(a)	YES	YES	262.90	N/A	2-175, 2-192
17	EXTERNAL – FRONT & SIDE
17.4	Moulding to front fence plinths & pillar caps	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	YES	506.00	N/A	2-175, 2-177
17.5	Paint around lettering to fence pillars	YES	YES	N/A	NO: s32(2)(a)	YES	YES	66.00	N/A	2-175, 2-192, 2-194
17.6	Colour of silicon around letterbox	YES	N/A	YES	COMPLIES	YES	YES	47.96	N/A	2-175, 2-184
17.7	Colour of silicon around letterbox	Repeats CSS 17.6	N/A	N/A	N/A	N/A	N/A	N/A	N/A	2-175, 2-184, 2-186
17.8	Silicon around letterbox	YES	N/A	YES	COMPLIES	YES	YES	47.96	N/A	2-175, 2-184, 2-187
17.12 #	Gaps between stone piers & lintels	YES	N/A	YES (part)	NO: s32(2)(a)	YES	YES	442.15	N/A	2-175, 2-184, 2-188
17.13 #	Paint to aluminium C-sections	YES	YES (part)	N/A	NO: s32(2)(a)	YES	YES	60.98	N/A	2-412
17.14	Bluestone paving scope	NO Refer CSS 16.14	N/A	N/A	N/A	N/A	N/A	N/A	N/A	2-271, 2-285, 2-289
17.15	Perpend weepholes under Sitting Room windows	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-416
17.16	Spout to water feature	YES (part)	YES	N/A	COMPLIES	YES	YES	372.90	N/A	2-1, 2-105
17.17 #	Crack between boundary wall & main residence	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	YES / TJ	576.36	N/A	2-175, 2-177, 2-179
17.18	Render on front fence, pillars & gate pillars	YES	YES	N/A	NO: s32(2)(a)	YES	YES	973.50	N/A	2-175, 2-177, 2-182
17.19	Stone block at central Porch pier	N/A / TJ	N/A / TJ	N/A / TJ	N/A	N/A / TJ	N/A	N/A	N/A	2-418
17.32	Paint finish to wrought iron balustrade	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	NO	NIL	N/A	2-220, 2-231
17.34	Caulking to vertical joint of fence	NO	N/A	N/A	N/A	N/A	N/A	N/A	N/A	2-175, 2-184, 2-190
17.35	Drainage sumps	YES (part)	N/A	NO	COMPLIES	NO	NIL	N/A	N/A	2-418
18	EXTERNAL - BALCONY
18.1	Plaster to rebate around French doors to Ian’s Study	YES	N/A	YES	COMPLIES	YES	YES	178.90	N/A	2-424
18.2	Slate sills	YES	N/A	YES	NO: s32(2)(a)	YES	YES	240.30	N/A	2-428
18.3	Painting of head of Study door frame	YES	YES	N/A	NO: s32(2)(a)	YES	YES	95.48	N/A	2-432
19	ROSE HALL EXTERNAL
19.1 Pl: 26(cc)	Double glazed GF windows & insect screens	YES	N/A	YES (part)	NO: s32(2)(a) (part)	YES (part)	YES	400.00	N/A	3-80
19.1.1 Pl: 26b	Selective re-pointing	YES	NO	YES	COMPLIES	NO/ARCH / TJ (liability)	NIL/YES/TJ	350.00	N/A	3-92	100% Architect
19.2	External Entry & Courtyard	3-116
(a) Cracking of window moulding #	YES	YES	N/A	NO: s32(2)(a)	YES	YES	551.10	N/A	3-438, 3-452
(b) Blue packing	YES	N/A	YES	NO: s32(2)(a)	YES	YES	27.00	N/A	3-438, 3-466
(c) Plaster finish dampness/ Graffiti	YES (part)	YES (part)	N/A	NO: s32(2)(a)	YES (part)	YES	543.18	N/A	3-438, 3-479
(d) Paintwork on Verandah soffit	YES	YES	N/A	NO: s32(2)(a)	YES	YES	NIL	N/A	3-438, 3-494
(e) Mintaro slate threshold #	YES	N/A	NO	COMPLIES	N/A	NIL / TJ	443.18	N/A	3-438, 3-506
19.3	Memorial Stone
• Rendering to side of window	YES	YES	N/A	NO: s32(2)(a)	YES	YES	68.18	N/A	3-134
• Silicone around memorial stone	YES	N/A	N/A	N/A	N/A	N/A	N/A	N/A	3-134
• Building debris	YES	N/A	N/A	N/A	N/A	N/A	N/A	N/A	3-134
• Sill & glazing	YES	N/A	N/A	N/A	N/A	N/A	N/A	N/A	3-134
19.4	Cracking of door frame	YES	NO	N/A	N/A	N/A	N/A	N/A	N/A	3-1, 3-4
19.8	Cracks to moulding adjacent door from church hall Lobby into Garage	YES	NO	N/A	N/A	N/A	N/A	N/A	N/A	3-1, 3-4, 3-5
19.9 #	NZ Clear Pine skirting boards	YES	YES (part)	YES (part)	NO: s32(2)(a) & (b)	YES	YES	2,000.00	N/A	3-139
19.10	Crack between glass frame & architrave	YES	YES (part)	N/A	NO: s32(2)(a)	YES	YES	53.90	N/A	3-1, 3-4, 3-6
19.12	Paint finish to black floorboards	YES	YES (part)	YES (part)	NO: s32(2)(a) & (b)	YES	YES	1,567.27	N/A	3-37, 3-51
19.13	Gap under Lobby entrance door	YES	N/A	YES	NO: s32(2)(a)	YES	YES	354.55	N/A	3-143
19.14	STORE UNDER STAIRS
19.14.1	Cracking around door to Storeroom	YES	YES	N/A	NO: s32(2)(a)	YES	YES	76.45	N/A	3-1, 3-4, 3-8
19.14.2	Cracking in door moulding of Storeroom door	YES	YES	N/A	NO: s32(2)(a)	YES	YES	76.45	N/A	3-1, 3-4, 3-9
19.14.6	Stair stringer	YES	N/A	YES	NO: s32(2)(a)	YES	YES	333.18	N/A	3-37, 3-55
19.14.7	Crack between glass frame & architrave	Repeats CSS 19.10	N/A	N/A	N/A	N/A	N/A	N/A	N/A	3-1, 3-4, 3-11
19A	ROSE HALL INTERNAL - GENERAL
19A.1 Pl: 26c	church hall internal wall repairs, painting	YES	N/A	YES (part)	NO: s32(2)(a) (part)	YES	YES	NIL	N/A	3-21, 3-34
19A.2	Striker plates, door keeps, storm moulding	3-147
• Door 16 Lobby church hall (DG16)	YES (part)	YES (part)	N/A	NO: s32(2)(a) (part)	YES (part)	YES	913.00 (Total of all sub-items)	N/A	3-147, 3-151
• Garage 02 Entry door (DG19)	YES (part)	YES (part)	N/A	NO: s32(2)(a) (part)	YES (part)	YES		N/A	3-147
• Door 19	Repeats above	N/A	N/A	N/A	N/A	N/A		N/A	3-147, 3-152
• Garage 01 Entry door (DG17)	YES (part)	YES (part)	N/A	NO: s32(2)(a) (part)	YES (part)	YES		N/A	3-147, 3-152
• Door keeps church hall/Garage (DG16 - DG18; DU 10 – DU12)	YES (part)	YES (part)	N/A	NO: s32(2)(a) (part)	YES (part)	YES		N/A	3-147, 3-152, 3-153
• Striker plate Powder Room door (DG13)	YES (part)	YES	N/A	NO: s32(2)(a)	YES	YES		N/A	3-147, 3-149
• Locks & latching external doors to Kitchen/Living/ Dining (DG03 – DG05)	YES (part)	YES (part)	N/A	NO: s32(2)(a) (part)	YES (part)	YES		N/A	3-147, 3-149, 3-150
19A.3	Church hall first floor manhole & Garage 02 manhole	YES	NO	YES (part)	NO: s32(2)(a)	YES	NIL	N/A	N/A	3-156
20	ROSE HALL GROUND LEVEL/GARAGE 01
20.2	Door 16 sidelight & Lobby entry door	YES	N/A	YES	NO: s32(2)(a)	YES	YES Refer also CSS19.2	56.98 Refer also CSS19.2	N/A	3-162
20.3	Plastering around Garage door/step	YES	YES	N/A	NO: s32(2)(a)	YES	YES	171.09	N/A	3-165
20.4	Render finish to edges of step & corners Garage door/landing	YES	YES	N/A	NO: s32(2)(a)	YES	YES	155.10	N/A	3-169
20.5	Raven RP4 door seals	NO	NO	NO	COMPLIES	N/A	N/A	N/A	N/A	3-173
20.7	Rendering of projecting course at top of stone walls	YES	N/A	YES	NO: s32(2)(a)	YES	YES	6,273.64	N/A	3-175
20.9	Window sills & frames	YES	YES	N/A	NO: s32(2)(a)	YES	YES	1,903.40	N/A	3-1, 3-16
20.10	Timber trims	YES	N/A	YES	NO: s32(2)(a)	YES	YES	NIL	N/A	3-180
20.11	Concrete rebate at segmental door	YES	YES	N/A	NO: s32(2)(a)	YES	YES	100.10	N/A	3-184
20.12	church hall internal wall repairs, painting	YES	N/A	YES	NO: s32(2)(a)	YES	YES	NIL	N/A	3-21, 3-35
20.14	Cracks to wall/ceiling junctions	YES	N/A	YES	NO: s32(2)(a)	YES	YES	585.20	N/A	3-1, 3-14
20.16 # Pl: 26(cd)	church hall finial repairs	YES	N/A	YES	NO: s32(2)(a) & (c) / TJ	NO/ARCH / TJ (liability)	YES / TJ	4,945.45	N/A	3-188	20% Builder 80% Architect
20.17	Cleaning & painting Garage floor	YES (part)	N/A	YES (part)	COMPLIES	YES	YES	NIL	N/A	3-197
20.18	Concrete slab adjacent boundary wall	YES	N/A	YES	NO: s32(2)(a)	YES	YES	100.10	N/A	3-202
20.19	Curved timber moulding at Garage door	YES	N/A	YES	NO: s32(2)(a)	YES	YES	149.60	N/A	3-205
20.20	Rendered band around exterior Garage opening	YES	YES	N/A	NO: s32(2)(a)	YES	YES	2,193.40	N/A	3-208
20.21	Plastering west wall of Garage	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	3-212
20.22	Stonework above Garage door	YES	N/A	YES	NO: s32(2)(a)	YES	YES	198.18	N/A	3-216
20.23	Raven RP4 door seals	Repeats CSS 19.13	N/A	N/A	N/A	N/A	N/A	N/A	N/A	3-219
20.24	Additional mouldings to door	YES	NO	N/A	COMPLIES	N/A	N/A	Refer CSS 1.11	N/A	2-196, 3-220
21	CHURCH HALL STAIRS
21.3	Miscellaneous carpentry repairs	YES	N/A	YES	NO: s32(2)(a)	YES	YES	201.30	N/A	3-37, 3-57
21.6	Hall Stair and landing	YES	YES (part)	N/A	NO: s32(2)(a) & (b)	YES	YES	270.45	N/A	3-37, 3-60
21.7 Pl: 26(ce) Pl: 26(cf)	Repairs to Stair structure	YES	NO	NO	COMPLIES	N/A	N/A	N/A	N/A	3-37, 3-64
23	WALK IN ROBE
23.1 #	Dressing Room wall and cracks to bulkhead/joinery & joinery/existing wall	YES (part)	YES (part) (remediated)	YES (part)	NO: s32(2)(a) (part)	YES (part) (remediated)	YES (part)	176.74	N/A	3-1, 3-17
24	1st FLOOR ROOM/GUEST
24.1	Moulding to sides of Entry door	YES	NO	N/A	N/A	N/A	N/A	N/A	N/A	3-1, 3-4, 3-11
24.6	Bird-proofing of roof	YES	N/A	YES	NO: s32(2)(a) & (b)	YES	YES	1,036.60	N/A	3-220
25	ENSUITE 2
25.1	Geberit unit	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	NIL	Refer CSS 2.2	N/A	2-238. 3-225
25.3	Moulding to sides of Entry door	YES	YES	N/A	NO: s32(2)(a)	YES	YES	91.96	N/A	3-1, 3-4, 3-12
25.8	Cost of additional shutters to Guest Suite	YES	N/A	NO	COMPLIES	N/A	N/A	N/A	N/A	3-225
25.9	Finish to shower waste pipe	Not Pressed (View2)	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A
25.10 #	Ducting for exhaust fan & whirlygigs	YES	N/A	YES (part)	NO: s32(2)(a) & (b) (part)	YES	YES	2089.80	N/A	2-257
26	GARAGE 02
26.1	Raven RP4 door seals	YES	N/A	YES	NO: s32(2)(a)	YES	YES	354.55	N/A	2-434
26.7	Moulding to sides of Entry door	YES	YES	N/A	NO: s32(2)(a)	YES	YES	76.45	N/A	2-130, 2-165, 2-169
26.8 #	Render around door frame	YES	YES	N/A	NO: s32(2)(a)	YES	YES	228.92	N/A	2-130, 2-143, 2-152
26.9	Cracks in door frame	YES	YES	N/A	NO: s32(2)(a)	YES	YES	101.20	N/A	2-130, 2-165, 2-170
26.11	Cracks between render and Garage door frame	YES	YES	N/A	NO: s32(2)(a)	YES	YES	107.80	N/A	2-130, 2-143, 2-154
26.17	Leak in Garden Store Room	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-437
26.19	Timber fascia east end Garage	YES	YES	N/A	NO: s32(2)(a) & (b)	YES	YES	375.10	N/A	2-440
26.20	Bagged wall finish Garage 2	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-443
26.21	Door DG21 [DG19]	YES	YES (part)	N/A	NO: s32(2)(a) (part)	YES (part)	N/A	Refer CSS 1.11	N/A	2-196
29	BIN STORE
29.1	Painting of surfaces	YES	N/A	YES	COMPLIES	YES	YES	NIL	N/A	2-445
29.2	Control joints over Garage 2 roof	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-448
29.3	Painting of gutter to Bin Store	YES	YES	N/A	NO: s32(2)(a)	YES	YES	149.60	N/A	2-450
29.5	Varnish coating & screw fixings	YES	N/A	YES (part)	COMPLIES	YES	YES	NIL	N/A	2-453
29.6	Ground level PVC pipe	YES	N/A	YES	COMPLIES	YES	YES	NIL	N/A	2-457
30	REAR LANE
30.1	Drainage and stormwater installation	YES	N/A	YES	COMPLIES	YES	YES	NIL	N/A	2-460
30.2	Double cast iron pipes or cast iron box section	Not Pressed	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A
31	LAP POOL AND WESTERN WALL
31.1	Completion of pool works	Not Pressed	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A
31.3	Acid damage to lid & exterior fixings	YES	NO	N/A	COMPLIES	N/A	N/A	N/A	N/A	2-1, 2-83, 2-103
TOTAL (excluding GST) =							$69,216.19