Johns v Morris t/as Andrew Morris Constructions

Case

[2014] NSWCATCD 33

02 April 2014


Civil and Administrative Tribunal

New South Wales

Case Title: Johns v Morris t/as Andrew Morris Constructions
Medium Neutral Citation: [2014] NSWCATCD 33
Decision Date: 02 April 2014
Jurisdiction: Consumer and Commerical Division
Before: D Goldstein, Senior Member
Decision:

The respondent must pay the applicants the sum of $25,276.95 immediately

Legislation Cited: Home Building Act 1989
Consumer, Trader and Tenancy Act 2001
Cases Cited: Unity Insurance Brokers Pty Limited v Rocco Pezzano Pty Limited 192 CLR
Biggin & Co Ltd v Permanite Ltd [1951] 2 K.B. 314
Category: Principal judgment
Parties: Christopher Johns and Kerri Lynn Johns (applicants)
Andrew Morris (respondent)
Representation
- Solicitors: The parties were self-represented
File Number(s): HB 12/56058
Publication Restriction: Unrestricted

REASONS FOR DECISION

  1. This is an application in which the applicants seek the payment of the sum of $30,108.35, inclusive of legal fees, from the respondent in connection with building work carried out by the respondent at the applicants'

    residence situate at 6 Arrawarra Road, Arrawarra Hedland (the "property").

  2. At the commencement of the hearing the applicant stated that at all material times, he and his wife were the registered owners of the property. The respondent consented to the application being amended to name Kerri Lynn Johns as an applicant.

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

  4. The owners claim is in relation to defective work allegedly carried out by the builder.

  5. The parties were self-represented at the hearing.

JURISDICTION

  1. Section 48K (1) of the Home Building Act1989 (the "Act") provides that:

    (1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations).

  2. A "building claim" is defined in section 48A of the Act as follows:

    building claim means a claim for:
    (a) the payment of a specified sum of money, or
    (b) the supply of specified services, or
    (c) relief from payment of a specified sum of money, or
    (d) the delivery, return or replacement of specified goods or goods of a specified description, or
    (e) a combination of two or more of the remedies referred to in paragraphs (a)-(d),
    that arises from a supply of building goods or services whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services, but does not include a claim that the regulations declare not to be a building claim.

  3. Further, in connection with the meaning of the expression "building claim", section 48A(2) of the Act states that:

    a building claim includes the following:
    (a) an appeal against a decision of an insurer under a contract of insurance required to be entered into under this Act,
    (b) a claim for compensation for loss arising from a breach of a statutory warranty implied under Part 2C.

  4. Building goods or services are defined in section 48A of the Act to mean:

    goods or services supplied for or in connection with the carrying out of residential building work or specialist work, being goods or services:
    (a) supplied by the person who contracts to do, or otherwise does, that work, or
    (b) supplied in any circumstances prescribed by the regulations to the person who contracts to do that work.

  5. Finally, residential building work is defined by the Act in section 3 to mean:

    any work involved in, or involved in co-ordinating or supervising any work involved in:
    (a) the construction of a dwelling, or
    (b) the making of alterations or additions to a dwelling, or
    (c) the repairing, renovation, decoration or protective treatment of a dwelling.

  6. The owners' claim falls within the jurisdictional limit of the Tribunal. It is a building claim as defined by the Act as it seeks payment of money from the builder. The claim arises out of the supply of services by the builder in connection with residential building work.

PREVIOUS ORDERS MADE BY THE TRIBUNAL

  1. Many orders were made by the Tribunal for the filing of evidence. Explanations were also given by the Tribunal about what the parties needed to establish at the hearing.

  2. Despite many orders being made for the filing of evidence, the builder filed and served very little evidence.

  3. On 22 February 2013 the builder was first ordered to file and serve all documents he relied upon including expert reports, witness statements and Scott Schedule. He was to do this by 5 April 2013.

  4. On 3 May 2013 the builder lodged a bundle of documents consisting of 5 pages in the Tribunal. On 8 August 2013 he filed "Points of Interest to the Hearing" which consisted of 14 points on just over 1 type written page.

  5. On 6 September 2013, the time for the builder to file and serve "evidence including any statement from him and any expert reports, documents or photographs" was further extended by the Tribunal to 20 September 2013.

  6. The Tribunal further made a direction that "the builder may not rely on any evidence filed after 20 September 2013 without leave of the Tribunal, which leave will only be given in extraordinary circumstances."

  7. The builder did not file any further evidence after his "Points of Interest to the Hearing" on 8 August 2013.

  8. At the hearing I was not referred to any circumstances which could be characterized as 'extraordinary' and thereby a reason to grant leave to the builder to adduce evidence in the hearing other than the documents lodged in the Tribunal on 3 May 2013 and 8 August 2013.

  9. As a result I did not allow the builder to produce any further evidence in the form of photos or oral evidence.

THE NATURE OF THE OWNERS' CASE

  1. It was common ground that the builder performed work for the owners at the property. The nature of the work carried out is described below.

  2. The owners subsequently sold the property.

  3. The persons who purchased the property from the owners, who I will describe as the "successors in title" took action against the male applicant in the Tribunal in connection with allegations that the work carried out by the builder was defective and had to be rectified by way of removal and replacement.

  4. The owners settled with the successors in title by payment of the sum of $27,267.95 which is made up as follows:

    a) 24,150.00 paid to rectification contractor;
    b) $1,126.95 for an expert's report; and
    c) $2,000.00 for legal fees.

  5. The owners were self-represented at the hearing and therefore did not consider or state the basis of their cause of action against the builder.

  6. After the hearing I made orders directing the owners to state whether they were owner builders for the purposes of the Act and if they were to produce documentary evidence of the fact. The builder was given the opportunity to respond.

  7. I took this course pursuant to section 28(5)( b) of the Consumer, Trader and Tenancy Act 2001 after considering whether the owners were liable to the successors in title. Usually a purchaser takes a property 'as is'. If that was the case the owners would not ordinarily have been liable to the successors in title. However, the Act changes that position in the case of an owner builder.

  8. 28 (5) (b) of the Consumer, Trader and Tenancy Act 2001 provides that:

    (5) The Tribunal:
    (b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings

  9. The owners produced an application for an owner builder permit under the Act dated 28 August 2008 in connection with work carried out at the property. The document produced by the owners indicates that Mr Johns was issued owner-builder permit 358371P.

  10. At the hearing, the issue of the builder's work being performed in a proper and workmanlike manner and in accordance with legal requirements was plain, emerging during the cross examination of the owners' expert. It is also mentioned in the owners' expert's report.

  11. The fact that the builder was at all material times an un-unlicensed builder under the Act was made clear at the hearing by the owners. The builder did not deny this fact or produce documents to establish a contrary position.

CONTRACT

  1. Both parties agreed that there was no written contract. There was an oral agreement between Mr Johns and the builder, which, from Mr Johns' evidence, seemed to be a very basic agreement. I find that this agreement was a contract to do residential building work.

  2. In his evidence Mr Johns stated that the work that was carried out by the builder under this agreement included construction of a deck, roof work and the installation of 9 deck posts, as shown on plans prepared on behalf of the owners by a draftsman engaged by them. The work was in the nature of the making of alterations or additions to a dwelling. Based on this evidence I find that the builder was carrying out building services for the purposes of the Act.

  3. The builder sent in invoices claiming payment for work performed. The invoices gave a brief description of the work the builder carried out.

  4. In my view section 18B of the Act applied to the contract entered onto between the owners and the builder. That section has the effect of implying the following warranties into the contract:

    a warranty that the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract,
    (b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new,
    (c) a warranty that the work will be done in accordance with, and will comply with, this or any other law,
    (d) a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time,
    (e) a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling,
    (f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment.

THE OWNERS EVIDENCE

  1. The male applicant gave evidence in a statutory declaration which was accepted into evidence. The builder cross examined him.

  2. During this cross examination Mr Jones agreed that he had plans drawn up by a draftsman which he discussed with the builder. These plans were among the documents that accompanied the application and the documents that the builder sent to the Tribunal on 3 May 2013.

  3. They are on two pages and consist of ground floor and top floor plans and four elevations.

  4. The owners also tendered an expert's report from a Mr Di Masi which is discussed in more detail below.

LEGAL ISSUE

  1. An issue in the proceedings is whether the owners may simply rely upon the settlement amount they paid to the successors in title as a proper quantification of their damages against the builder.

  2. The builder adverted to this issue at the hearing in a general and critical way, albeit without appreciating the legal complexities involved. The owners were unaware that such an issue existed.

  3. Issues of this nature were considered by the High Court of Australia in the case of Unity Insurance Brokers Pty Limited v Rocco Pezzano Pty Limited 192 CLR at 603.

  4. The facts of that case were of course quite different to the facts at issue here. And the amounts in issue were of course far greater in Unity. In addition, the parties in Unity were represented by solicitors and counsel. The decision in Unity related primarily to the facts there in issue, although there was general discussion of the issue of whether a plaintiff is able to rely upon the amount paid in settlement to a third party as the basis for the damages sought against the defendant.

  5. Unity also considered the English decision of Biggin & Co Ltd v Permanite Ltd [1951] 2 K.B. 314 (CA) where it was held that an amount paid by a plaintiff to settle with a third party could count as damages against the defendant, provided that the settlement was reasonable. At least one judge in the High Court expressed the view that Biggin & Co Ltd should not be followed in Australia.

  6. I think that it is clear that the High Court in Unity was of the view that it does not automatically follow that parties in the position of the owners may simply rely upon the settlement amount they paid to the successors in title as a proper quantification of their damages against the builder.

  7. In accordance with what was decided in Unity I think that I must consider what would have been in the reasonable contemplation of the parties at the time the contract was entered into, if they had considered the consequences of the builder performing work in breach of the implied warranties referred to above.

  8. In my view it would have been in the contemplation of the parties to the contract that on the discovery of defective work, the builder would have either performed rectification work or paid the applicant the cost incurred in having other contractors rectify the defective work.

  9. If at that time the owners were privy to the knowledge that the builder was not licensed under the Act to carry out residential building work, and the builder understood that being unlicensed, he was unable to carry out rectification work, it is clear in my view that the parties reasonable contemplation would have been that on the discovery of defective work, the builder would pay the applicant the cost incurred in having other licensed contractors rectify the defective work.

  10. The next issue that arises out of Unity is whether the settlement that the owners reached with the successors in title was reasonable.

  11. A factor going to that issue is that at the time of the settlement, the successors in title had commenced proceedings in the Tribunal against Mr Johns seeking payment of the sum of $53,605.20 as a result of defective work carried out by the builder.

  12. A critical issue in these proceedings is whether the applicants were liable to the successors in title in connection with building defects in the property. Ordinarily the applicants would not be liable. In that case their settlement with the successors in title would in my view constitute a voluntary payment which would not serve as a proper quantification of damages against the builder.

  13. However, the Act provides that the warranties contained in section 18B may benefit persons who were not party to a contract with a builder.

  14. To examine this issue further I sought submissions from the parties going to whether the applicant was an owner builder under the Act at the relevant time.

  15. Section 18C of the Act states that:

    A person who is the immediate successor in title to an owner-builder, a holder of a contractor licence, a former holder or a developer who has done residential building work on land is entitled to the benefit of the statutory warranties as if the owner-builder, holder, former holder or developer were required to hold a contractor licence and had done the work under a contract with that successor in title to do the work.

  16. The owners have provided evidence that Mr Johns was an owner-builder under the Act. They produced an application for an owner builder permit under the Act dated 28 August 2008 in connection with work carried out at the property. The document produced by the owners indicates that Mr Johns was issued owner-builder permit 358371P. As a result of Mr Johns being an owner builder and contracting with the builder in the course of having owner-builder work carried out, I find that the successors in title had a good cause of action against the applicants pursuant to section 18C of the Act and that a settlement of their action in the Tribunal was appropriate and prudent.

  17. The successors in title had commissioned Mr Di Masi's report, prepared before the settlement, which described the building defects relating to the east and north roofs constructed by the builder. The building report also described the recommended rectification work.

  18. In addition, the successors in title obtained a quote from a rectification contractor who priced the rectification work at $24,150.00.

  19. All of this information was created before the owners settled with the successors in title and was available to them at that time.

  20. The documents that the owners lodged in the Tribunal in support of their case indicates that they received legal advice about the application brought against Mr Johns in the Tribunal by the successors in title before they entered into the settlement.

  21. These factors lead me to accept, on an objective basis, that having regard to what was known at the time, it was reasonable for the owners to have reached a settlement with the successors in title for at least $24,150.00.

  22. However the owners settled for a higher amount. They also paid the successors in title $1,126.95 to reimburse them for Mr Di Masi's report and $2,000.00 for legal fees.

  23. In my view it was reasonable for the owners to have paid the successors in title for Mr Di Masi's report as it is highly probable that had the successors in title's proceedings in the Tribunal against the owners been pursued to a final hearing and decision, they would have been successful and would have recovered the costs of Mr Di Masi's report.

  24. However, I very much doubt that the successors in title would have recovered their legal fees. The reason for this conclusion is that Section 53 of the Consumer, Trader and Tenancy Act 2001 provides that:

    (1) Subject to this section and the regulations, the parties in any proceedings are to pay their own costs.
    (2) The Tribunal may, in accordance with the regulations, award costs in relation to any proceedings.'

  25. Regulation 20(3) of the Consumer, Trader and Tenancy Regulation 2009 provides that:

    (3) In any proceedings in respect of which the amount claimed or in dispute is more than $10,000 but not more than $30,000, the Tribunal may award costs in relation to the proceedings only if:
    (a) the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs, or
    (b) the Tribunal has made an order under section 30 (2) of the Act in relation to the proceedings.

  26. In my view had the case brought against Mr Johns by the successors in title been litigated to finality, the successors in title most probably would have recovered the expert's fee as costs, but not their solicitors fees.

  27. In my view the successors in title could not have maintained their claim against Mr Johns without Mr Di Masi's expert report. That in my view would have been an "exceptional circumstance" that warranted the awarding of costs. However a solicitor's involvement would not in my view have come within the description of "exceptional circumstances".

  28. It follows in my view that the sum of $25,276.95 was a reasonable settlement for the owners to have paid the successors in title in order to settle the case against them that was caused by the builder's breach of the implied statutory warranties referred to above.

MATERIAL QUESTION OF FACT

  1. The builder asked Mr Johns to agree with him that he (the male applicant) supplied material for the deck and roof. Mr Johns replied that he supplied materials except for gutters and did so under the builder's advice. Mr Johns stated further in answer to the question that that the builder told him what materials to order, the 'dimension and the number'.

  1. I accept Mr Johns' evidence on this issue. The builder did not file and serve a witness statement despite the many opportunities that he had to do so. He did not take any of the opportunities given to him to put his account of this factual issue into evidence.

  2. The builder's Points of Interest to the Hearing states at point 2 "Christopher Johns supplied materials for the whole project which I had no control over any materials". While strictly speaking this is not evidence, I stated that I would take into account the documents filed and served by the builder.

  3. Mr Johns' has admitted that he supplied materials to the builder for the purposes of the builder carrying out the work the subject of their agreement. However I do not accept the builder's position that he had no control over the material supplied.

  4. Mr Johns stated that he does not have a background in building. I accept that evidence. It is far more likely that an owner who is supplying materials for a builder will order the materials the builder specifically asks for including, where applicable, materials of the dimensions the builder asks for. I prefer Mr Johns' evidence on this point as being what occurred. The builder's Points of Interest to the Hearing at point 2 that he 'had no control over any materials' suggesting that Mr Johns ordered building materials without reference to him is, to my mind far-fetched.

  5. This issue is relevant as the dimension of timbers used by the builder is stated to be a cause of the defects in the roof.

  6. The builder's case, which I do not accept, is that as he was obliged to use the timbers supplied by the Owners he is not to blame if the timbers are undersize and therefore the cause of defects occurring in the roof.

  7. Even if I am wrong about Mr Johns relying on information provided by the builder regarding the dimensions of materials in general and roof timbers in particular, it is my view that if the builder had been proceeding in accordance with the warranty implied into the contract between the parties by section 18B(a) of the Act, he would have refused to incorporate undersize timber into the roof work merely because the owners had provided timbers that did not comply with the requirements of the Building Code of Australia or the appropriate Australian Standard.

EXPERT EVIDENCE

  1. The owners served an expert report prepared by Mr D. De Masi dated 6 July 2012. Mr Di Masi inspected the premises on 14 June 2012. He acknowledges reading the Tribunal's Expert Witness Code of Conduct and agreed to abide by it.

  2. Mr Di Masi's curriculum vitae was attached to his report. Mr Di Masi is a carpenter and joinder and a self-employed builder. He has been operating as a building consultant since 2001 and has completed some 2300 building inspection reports.

  3. I accept Mr Di Masi as an expert who is able to give opinion evidence.

  4. The builder did not file an expert's report in the Tribunal.

    a) the roof pitch was too low. He stated that it was 1° whereas it should be 5° minimum for the roof profile used;
    b) the main part of the patio roof was not installed level;
    c) the corner where the roof meets the house has sagged. It has moved about 30 mm over the distance of 1200mm over a period of time;
    d) the connection of the roof to the fascia is inadequate and has failed. The frame was fixed only to the fascia which is non-structural and is not common or good building practice;
    e) the beams and rafters have sagged because the timbers used were too small for their span and were in breach of Australian Standard 1684.2;
    f) the deck posts are not plumb ranging from being 5mm - 15mm out of plumb;
    g) the handrails are inadequate and are safety hazard and are in breach of 3.9.2.3 of the Building Code of Australia; and
    h) the deck has sagged causing water to pond.

  5. Mr Di Masi has identified breaches of Australian Standard 1684.2, the Building Code of Australia and a failure to build in accordance in the work performed by the builder. This was despite the Tribunal's order on 9 August 2013 that the builder was to advise "in writing the names of his expert(s) to the Tribunal and the applicant by 16/8/13".

  6. The Tribunal also stated in its orders of 9 August 2013 "The Tribunal strongly recommends the builder obtain legal advice about the preparation and presentation of his case, including advice concerning what, if any steps can be taken to allow his expert to access the property the subject of the dispute."

  7. The builder complains that the current owners of the property would not grant an expert retained by him access to the property. No evidence of this was prepared and filed. It was merely a complaint made by the builder from the bar table.

  8. In my view the builder is at fault in not having filed and served an expert report. His expert could have responded to Mr Di Masi's report and pointed out any difficulty he may have encountered by reason of a lack of access to the property. In passing, the builder stated that he had observed a number of rectification issues at the property from the street. There was no suggestion that a street view of the property was not available to an expert retained by the builder, albeit this would not have been ideal.

  9. Mr Di Masi stated in his report that rear patio roof was not constructed in compliance with Australian Standard 1684.2.

  10. He identified a number of issues in his report. They are:

  11. He has recommended that the rear and side patio roof and balustrade needs to be completely rebuilt with the appropriately sized framing members and the appropriate roofing and roofing pitch. He also stated that the connection of the rear and side patio roof to the house roof "will need to be altered to adequately support the patio roof and be flashed into the main roof tiles to prevent leaking."

  12. As I have mentioned, the builder did not serve an expert's report in response to Mr Di Masi's report.

  13. The builder did cross examine Mr Di Masi and in the course of the cross examination put a number of matters to Mr Di Masi.

  14. The builder suggested to Mr Di Masi that he had constructed the work in question in accordance with the plans that I have referred to, with the result that he was not at fault if defects had emerged. Mr Di Masi did not agree with this suggestion and maintained his view that the fixing of the roof frame to the fascia was not good building practice and the roof timbers installed by the builder should have been installed into the wall frame of the house.

  15. Mr Di Masi stated on numerous occasions during his cross examination that compliance with Australian Standards, the Building Code of Australia and working in accordance with good building practice supported the conclusions set out in his report.

  16. He agreed with the builder that the drawings referred to above did not contain details, but stated that the work shown on them could have been constructed to comply with the drawing and Standards, Codes and good building practice.

  17. He also stated that if there was a conflict between a drawing and Standards, Codes and good building practice, in his opinion a builder is obliged to build in accordance with the law, by which I understand him to mean the Building Code of Australia, and to raise the issue with whoever had prepared the drawing.

  18. I accept Mr Di Masi's evidence and his conclusion that the rear and side patio roof and balustrade needs to be completely rebuilt with the appropriately sized framing members and the appropriate roofing and roofing pitch.

  19. Nothing that arose during his cross examination has caused me to reject his evidence.

  20. Mr Di Masi's evidence satisfies me that the owners' claims against the builder as regards defective work have been made out and established on the balance of probabilities.

ASSESSMENT OF DAMAGE

  1. As stated above, the owners sold the property. The successors in title brought the defects to the owners' attention and took action against Mr Johns in the Tribunal for rectification damages. The owners settled that action and seek to recover against the builder as explained above.

  2. During the course of the hearing the builder made a number of assertions that the rectification work that has been carried out goes further than the work that he was contracted to do, and that it was unfair that he be asked to pay for the additional work.

  3. In fact the documents the builder himself lodged in the Tribunal makes that point untenable.

  4. The rectification work was priced by a rectification contractor who priced the work at $24,150.00 inclusive of GST. The quote was included in a bundle of documents that the owners lodged in the Tribunal. A copy of the same document was lodged in the Tribunal by the builder on 3 May 2013.

  5. Some confusion was briefly introduced by the builder's claim that additional work had been carried out in the rectification process and there is an attempt by the owners to have him made liable for that additional work. In particular, the eastern roof had been rectified to produce a finished result in an entirely different way to its original construction by the builder.

  6. To clarify this issue I asked Mr Di Masi if he would price the rectification work based on the original work that the builder had carried out to the original plans referred to above. Mr Di Masi was kind enough to assist the Tribunal in this regard. His build-up of the price is exhibit E, and shows a total rectification cost of $24,080.00 inclusive of GST. This is approximately the same amount as quoted by the rectification contractor, $24,150.00 inclusive of GST.

  7. One of the documents sent in by the builder to the Tribunal was a letter from one of the successors in title to the effect that the contract with rectification contractor had changed from the original quote due to the "addition of rear veranda roof replacement, installation of stairs and glass balustrading, thus adding $29,850.00 in extras."

  8. The additional work the builder was claiming that he was being asked to pay for was the rear veranda roof replacement and glass balustrading as referred to in the preceding paragraph.

  9. The documents in the builder's own possession show that there was no attempt to have him pay for extra work associated with the rectification.

  10. The documents lodged in the Tribunal by the owners establish that they have paid the successors in title the sum of $27,267.95 which is made up as follows:

    a) $24,150.00 paid to rectification contractor;
    b) $1,126.95 for an expert's report; and
    c) $2,000.00 for legal fees.

  11. For the reasons set out above, I am satisfied that $24,150.00 is a reasonable amount for the cost of rectification. Mr Di Masi's pricing of the work establishes that in my view.

  12. I will make an order that the builder must pay the owners the sum of $24,150.00 as damages for the breach of the implied warranty to carry out the work under the contract with the owners in a proper and workmanlike manner and in accordance with the law, specifically the Building code of Australia. I will also allow the owners to recover $1,126.95 they paid to the successors in title in connection with Mr Di Masi's report.

  13. As for the sum of $2,831.70 claimed as legal fees in this application, I note from the documents supplied by the owners that those legal fees relate to the claim brought by the successors in title against them.

  14. Those fees do not relate to this application. This aspect of the owner's claim is dismissed.

MITIGATION

  1. The builder has complained that he was not allowed the opportunity to rectify the defective work.

  2. The owners' answer to that point is that it emerged after the work was completed that the builder is an unlicensed builder. Neither they nor the successors in title were agreeable to him carrying out unlicensed rectification work.

  3. The builder has stated that he was agreeable to having a licensed builder carry out the rectification work at his cost. However there is no evidence of him ever making such an offer.

  4. I am of the view that such a proposal is a recent invention of his.

COUNCIL APPROVAL OF WORK

  1. The builder has stated in his final submissions by way of an answer to the case against him that council inspected the work he carried out and approved that work.

  2. The builder has not lodged in the Tribunal any evidence to support this allegation. As stated above, he has been given many opportunities to obtain this evidence in the form of council records. But he has not done so.

  3. The owners have not produced any evidence that would form a documentary basis for this submission.

  4. In the absence of evidence to establish the approvals that the builder seeks to rely upon, I reject this submission.

FINAL ORDERS

  1. For the reasons set out above I will make an order that the builder must pay the owners the sum of $25,276.95 immediately.

    D Goldstein
    Senior Member
    Civil and Administrative Tribunal of New South Wales

    2 April 2014

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