Nick Manevski v Ben Jennings
[2014] NSWCATCD 179
•12 September 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Nick Manevski v Ben Jennings [2014] NSWCATCD 179 Decision date: 12 September 2014 Before: D Goldstein, Senior Member Decision: 1. The respondent Ben Jennings must pay the applicant Nick Manevski the sum of $15,907.38 within 14 days of the date of this order.
2. Either party is at liberty to make a costs application in these proceedings.
3. Any costs application pursuant to section 53 of the Consumer, Trader and Tenancy Tribunal Act 2001 or rule 20 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application.
4. The costs respondent will have 21 days after the date he receives the costs application referred to above, to lodge in the Tribunal and serve on the costs applicant his submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
5. The cost applicant will have 14 days after the date he receives the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent his submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
6. The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.
Catchwords: Whether applicant entitled to damages for own labour, defective work. Legislation Cited: Home Building Act 1989
Consumer, Trader and Tenancy Tribunal Act 2001Cases Cited: Laurence Peter Thomas v Powercor Australia Limited [2011] VSC 586 Texts Cited: None cited Category: Principal judgment Parties: Nick Manevski (applicant)
Ben Jennings (respondent)File Number(s): HB 13/59143 Publication restriction: Unrestricted
reasons for decision
APPLICATION
In these proceedings the applicant seeks the sum of $53,884.00 from the respondent for rectification of allegedly defective residential building work carried out by the respondent under a contract with the applicant. The applicant also claimed in connection with work allegedly contracted for, but not carried out.
The applicant was having work carried out as an owner builder at premises situate at 33 Fisher Street Wollongong.
In these reasons for decision I will refer to the applicant as the owner builder and to the respondent as the builder.
These proceedings were finally heard in Wollongong on 1 August 2014. Neither party was legally represented.
The contract the subject of these proceedings was dated 8 October 2008 and consisted of a simple quotation. The contract does not comply with the provisions of the Home Building Act 1989 (the 'Act'), although nothing turns on that since the builder makes no claim against the owner builder in these proceedings.
The work that the builder was to carry out was described in the quotation as:
(a) Build wall frames & trusses;
(b) Bearers and joists;
(c) Rear verandah;
(d) Cladding, wall & gable;
(e) Colourbond roofing;
(f) Metal fascia & gutter;
(g) Eave lining;
(h) Chipboard flooring;
(i) Tongue & groove hardwood flooring;
(j) Ext sliders and doors;
(k) All windows;
(l) Internal doors and cavity sliders;
(m) Linen shelves; and
(n) Architrave & skirtings.
The contract sum was $37,988.00 inclusive of GST.
There is no dispute that the builder's quote was given in connection with residential building work or that the owner builder's claim in these proceedings is a building claim as that term is described in section 48A of the Act. There is no dispute about my jurisdiction to hear these proceedings.
The owner builder's case is based on section 18B of the Act which provides that:
'The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work:
(a) 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 builder in his final submissions stated that the owner builder's application was brought out of time. The submission was not developed before the Tribunal.
Application out of time
The application in these proceedings was lodged in the Tribunal on 11 November 2013.
Section 13 of the Home Building Amendment Act 2011 (the 'Amending Act') amended section 18E of the Act by, among other things, amending the warranty period to be 6 years for a breach of an implied warranty resulting in a structural defect and 2 years in any other case.
Before the Amending Act, the position was that there was a warranty period of 7 years commencing from the completion of the relevant work.
The Amending Act was assented to on 25 October 2011 and was proclaimed on 1 February 2012.
Section 13 of the Amending Act commenced on 1 February 2012 with the result that absent anything else in the Amending Act, the warranty period as amended applied to these proceedings, given that the application was filed in the Tribunal after the proclamation on 1 February 2012.
Schedule 4 of the Amending Act
There are 2 sections of schedule 4 to the Amending Act which are relevant and have the capacity to displace the position as described in paragraph 15 above.
Section 107 of the Amending Act provides:
'An amendment made by the amending Act does not (despite any
other provision of this Part) extend to or otherwise affect any
decision of a court or tribunal in proceedings commenced in the
court or tribunal before the commencement of the amendment
(whether the decision is made before or after that commencement)'
Section 109 of the Amending Act provides:
'The amendment made to section 18E by the amending Act does
not apply in respect of a contract for residential building work
entered into before the commencement of the amendment.'
In my view and I so find, section 107 of the Amending Act does not apply to this application in so far as it relates to section 18E of the Act because these proceedings were not commenced in the Tribunal before the commencement of the amendment of section 18E of the Act, namely on 1 February 2012.
If section 109 of the Amending Act applies to the facts of this application, its effect will be that the warranty period applicable to this application will be a period of 7 years commencing from the completion of the relevant work.
It is the case that the contract for residential building work relevant to this application was dated 8 August 2008, well before the commencement of the amending Act. The warranty period is therefore seven years as from the completion of the work to which it relates.
The evidence is that the building work carried out by the builder was completed on or about October 2012 when the builder terminated his contractual relationship with the owner builder.
The warranty period of seven years had not expired when these proceedings were commenced.
I reject the builder's submission that these proceeding in so far as they are based on a breach of a statutory warranty, have been brought out of time. It follows that the Tribunal has the necessary jurisdiction to hear and determine the owner builder's building claim.
The experts
The owner builder commissioned an expert report from Mr John Maglis of Tyrrells Property Inspections. There was no challenge to Mr Maglis's standing as an expert or his ability to give opinion evidence. However the builder has made some criticism of the reasoning basis or the lack of reasoning in the report.
Mr Maglis sets out his observations in paragraphs 7.1 and 7.2 of his report and sets out his conclusions in paragraph 8.
The owner builder is an electrician. He also states that he has completed an Associate Diploma in Applied Science (Building). He states that in the course of his studies for this Diploma he studied quantities, estimating, construction drawing and building methods.
The owner builder prepared a document entitled 'Applicants Summary Report' which is exhibit E in these proceedings. It is Appendix F to Mr Maglis' report. I do not accept the owner builder as an expert in these proceedings. I will accept his summary report only in so far as it deals with factual matters which the owner builder knows from his own direct knowledge.
The builder relied upon a report from Mr Stephen Campbell dated 24 April 2014. Mr Campbell did not attend at the hearing to be cross examined on his evidence. Having said that, I am not aware that the owner builder required his presence at the hearing for that purpose. The report was unsigned and did not show any signs of acknowledgement of or compliance with the Chairperson's Code of Conduct regarding expert witnesses. The report did not attach the expert's curriculum vitae, although he sets out his experience in the body of his report.
I have considered whether I should accept Mr Campbell's report or whether it should be rejected. I note that the Chairperson's directions regarding expert witnesses do not make it mandatory for a report to comply in all respects in order for it to be accepted into evidence. Further, under section 35 of the Consumer, Trader and Tenancy Tribunal Act 2001, I am obliged to ensure that each party is given a reasonable opportunity to call evidence and present his or her case. Given the fact that the parties are unrepresented and the fact that the applicant's expert did not attend the Tribunal to answer questions about his report, the deficiencies in the builder's expert's report should not in my view operate as a bar to its admissibility.
I accept Mr Campbell as a witness capable of giving opinion evidence in these proceedings and will accept his report, subject to weight. However, Mr Campbell should consider himself on notice that reports which do not comply with the Chairperson's directions regarding expert witnesses will not always find their way into evidence. His obligations to the Tribunal and to his clients require a higher standard.
Certain passages in Mr Campbell's report were struck out on the basis that he was not present at the Tribunal and was not available to be cross examined by the owner builder.
Is applicant entitled to damages for his own labour?
It emerged during the hearing that the owner builder carried out a good deal of carpentry work for which he claims compensation.
I have decided that the first issue that I should determine is whether the owner builder is entitled to recover compensation for his own time in what he describes as carrying out work that has been omitted by the owner builder.
The parties being unrepresented did not address me on what is essentially a legal issue.
In Laurence Peter Thomas v Powercor Australia Limited [2011] VSC 586 Forrest J. considered, among other things, whether the plaintiff in that case was entitled to damages for his own labour. The plaintiff's case was in tort. Here the applicant's case is in contract. However I do not think that factor makes a difference. After an exhaustive consideration of the relevant authorities, Forrest J concluded that the plaintiff was entitled to recover the reasonable commercial cost of repairs to the damaged or destroyed infrastructure on his property that had been destroyed by the defendant's negligence.
I will follow Forrest J's decision and where a breach of a statutory warranty is established, allow damages claimed by the owner builder for the breach of the statutory warranty as measured by his own time in doing the relevant work.
The claims for defective work arising out of a breach of a statutory warranty
The expert report relied upon by the owner builder as referred to above was attached to the application. A scott schedule consisting of three items was attached to the report. The expert costed the items, and the total amount relating to defective work was stated to be $15,907.38.
I will consider each of the three items referred to by the expert, Mr Maglis.
The first item relates to the provision of Home Owners Warranty Insurance. I have assumed that Mr Maglis is stating that rectification work will require Home Owners Warranty Insurance which will come at a cost of $230.21. I agree on an 'if found' basis.
The second item relates to the lounge room study and entry. The main complaint is that the floors are out of level. The falls are said to exceed 10mm in contravention of the NSW OFT Guide to Standards & Tolerances 2007. The amount claimed is $6,913.23. There is no tongue and groove flooring installed in these areas.
The third item relates to bedroom 3 where the complaint is the same as above, namely that the floors are out of level. It is said that the falls exceeds 10mm over a 2m span contrary to the NSW OFT Guide to Standards & Tolerances 2007. There is tongue and groove flooring installed in these areas
It is relevant to keep in mind that the work that the respondent carried out in relation to the areas referred to in items 2 and 3, namely lounge room, study and entry and bedroom 3, was installing bearers and joists and later laying battens. The respondent did not lay the tongue and groove flooring which formed part of his quote.
Mr Campbell on behalf of the respondent advances the proposition that the relevant floors were not installed out of level, but deflected from level after construction by a load placed on the floor and the exposure of floor joists to water. His evidence does not refer to the primary factual material upon which he relies and has a clear trace of advocacy on behalf of the builder.
The builder has provided a written document which I accepted into evidence as exhibit 1. He states that he ceased working for the applicant in October 2012 and that seems to have been a situation that came about by mutual consent. There is no claim by either party for wrongful termination of the contract.
The builder's evidence is that after his involvement with the work came to an end, scaffolding and other material was stored on the area where there is a complaint of incorrect falls. Also the builder states that these areas, which he states were overloaded, were not underpinned and were left exposed to the weather. The effect of this evidence is that the joists came out of level due to these factors, which were not caused by the builder.
The builder's evidence then states that at the request of the owner builder he battened the floor to level in order to overcome the deflection in the joists.
There is no evidence to contradict Mr Maglis's opinion that the floors in the lounge room, study and entry and in bedroom 3 are out of level. Mr Campbell in my view spends time and effort in attempting to explain why the joists deflected or came out of level and why that is not the responsibility of the builder. He does not plainly say whether or not the relevant areas are out of level.
I prefer the evidence of Mr Maglis to that of Mr Campbell. It is regrettable that they did not have the opportunity to confer regarding their respective reports. As stated, my perception of Mr Campbell as an advocate for the builder is a reason for not accepting his evidence.
The builder's own evidence is that at the request of the owner builder, he battened the floors to level in order to overcome the deflection in the joists. It follows in my view that he was obliged to do that work in accordance with section 18B (a) of the Act which required that the work would be performed in a proper and workmanlike manner. The builder has presented no independent evidence at all to establish that the floors as battened by him were in level. He has brought no evidence to contradict the costs of rectification set out by Mr Maglis. I find on the basis of Mr Maglis's report that the builder failed to batten the floors to level in the lounge room, study and entry and in bedroom 3. As a result of this failure the builder breached the warranty referred to in section 18B (a) of the Act.
It follows from the preceding reasons that the owner builder will be successful in connection with items 1-3 of his scott schedule in the sum of $15,907.38.
Items 4 - 20 of the scott schedule lodged in the Tribunal on 14 January 2014
Items 4 - 20 of the scott schedule lodged in the Tribunal on 14 January 2014 were prepared by the owner builder. These items are not supported by an expert's opinion. As I have stated, I do not accept the owner builder as a witness entitled to give opinion evidence.
I will deal with each item in the scott schedule lodged in the Tribunal on 14 January 2014 in turn.
Item 4, 'Incorrect wall placement'. As there is no expert evidence to support this item of claim it is dismissed.
Item 5 "Uneven ceiling Levels'. Insofar as factual evidence is sought to be introduced, the evidence is non-persuasive because of an absence of adequate supporting facts. There is no expert evidence to support this item of claim. By reason of these deficiencies, this item of claim is dismissed.
Item 6 'Uneven walls'. There is no expert evidence to support this item of claim. Also, 'negative visual aspect' is referred to. The Act does not provide relief for negative visual aspects. This item of claim is dismissed.
Item 7 'Steel columns not fixed'. In a complaint regarding steel columns, I would expect the owner builder to provide an engineer's report. One has not been provided. There is no expert evidence to support this item of claim. As a result, this item of claim is dismissed.
Item 8 'Notched Joist'. It is alleged that the work complained of does not comply with manufacturer's installation requirements. Those requirements are not in evidence. There is no expert evidence to support this item of claim and the owner builder has failed to establish what the manufacturer's installation requirements were. As a result, this item of claim is dismissed.
Item 9 'Roofing'. There is no expert evidence to support this item of claim. As a result, this item of claim is dismissed.
Item 10 Un-tradesman like Truss and Beam Placement. There is no expert evidence to support this item of claim. As a result, this item of claim is dismissed.
Item 11 'Frame and bearer Installation'. This item of claim is in effect a claim for a refund of money for work allegedly not carried out by the builder. I am not satisfied on the meagre evidence provided by the owner builder that a refund of, or the amount claimed of $1,319.00 is warranted. This item of claim is dismissed.
Item 12 'Exterior cladding'. This item of claim is also a claim for a refund of money for work allegedly not carried out by the builder. The builder alleges that the cost of the work that he did not carry out was removed from the scope of work as an agreed variation. The evidence put forward by the owner builder does not persuade me that he is entitled to the refund of or the amount of $3,974.00 as claimed. This item of claim is dismissed.
Item 13. 'Gable end cladding'. This item of claim is also a claim for a refund of money for work allegedly not carried out by the builder. The builder alleges that the cost of the work that he did not carry out was removed from the scope of work as an agreed variation as per the preceding item. The evidence put forward by the owner builder does not persuade me that he is entitled to the refund or the amount of $197.00 as claimed. This item of claim is dismissed.
Item 14, Eave and Patio Lining'. This item of claim is also a claim for a refund of money for work allegedly not carried out by the builder. The builder alleges that a deduction for the installation cost was given. The evidence put forward by the owner builder does not persuade me that he is entitled to the refund of or the amount of $2,681.00 as claimed. This item of claim is dismissed.
Item 15 'Hardwood flooring'. This item of claim is also a claim for a refund of money for work allegedly not carried out by the builder. The builder alleges that a deduction of the square metres of the ground floor was given and that the provision of hardwood flooring for the upper floor did not form part of the contract. The owner builder claims the sum of $12,250.00 for this work. The basis upon which this amount has been calculated has not been established to my satisfaction. The owner builder has not demonstrated where the 322.8 m2 of flooring is situated in the premises. The evidence put forward by the owner builder does not persuade me that he is entitled to the refund of or the amount of $12, 250.00 as claimed. This item of claim is dismissed.
Item 16 'Exterior Windows and Doors'. The amount claimed is $3,953.00. This item of claim is also a claim for what appears to be a refund of money for work allegedly not carried out by the builder. The owner builder stated at the hearing that he had someone else do the work of window installation. However he has not produced evidence of paying for such work. The facts relating to this item of claim make it doubtful that the owner builder is seeking a refund or a credit for work not having been carried out by the builder. Rather, the claim suggests that it is one for damages. As stated there is no claim by either party arising out of the fact that the parties accepted that the builder would cease doing any more work before all of the work in his quotation had been completed. In addition the builder has stated that a deduction for the installation of the original windows and external doors was given. The evidence put forward by the owner builder does not persuade me that he is entitled to the refund of or the amount of $3,953.00 as claimed. This item of claim is dismissed.
Item 17 'Internal doors'. Amount claimed $3,225.00. The owner builder stated at the hearing that he carried out the work the subject of this item of claim. Although the explanation in the scott schedule indicates that the claim is for what appears to be a refund of money for work allegedly not carried out by the builder, the fact that the owner builder is claiming for his own time, indicates to me that the claim is one for damages. As stated there is no claim by either party arising out of the fact that the parties accepted that the builder would cease doing any more work before all of the work in his quotation had been completed, thus giving rise to an entitlement to damages. In addition the builder has stated that a deduction for the installation of the internal doors was given. The evidence put forward by the owner builder does not persuade me that he is entitled to the amount of $3,225.00 as claimed. This item of claim is dismissed.
Item 18 'Internal Hardware to doors'. Amount claimed $1,138.00. The owner builder stated at the hearing that he carried out the work the subject of this item of claim. Although the explanation in the scott schedule indicates that the claim is for what appears to be a refund of money for work allegedly not carried out by the builder, the fact that the owner builder is claiming for his own time, indicates to me that the claim is one for damages. As stated, there is no claim by either party arising out of the fact that the parties accepted that the builder would cease doing any more work before all of the work in his quotation had been completed, thus giving rise to an entitlement to damages. In addition the builder has stated that a deduction for the installation for the internal hardware to doors was given. The evidence put forward by the owner builder does not persuade me that he is entitled to the amount of $1,138.00 as claimed. This item of claim is dismissed.
Item 19, 'Architraves and Skirting'. Amount claimed $2,664.00. The owner builder stated at the hearing that he carried out the work the subject of this item of claim. Although the explanation in the scott schedule indicates that the claim is for what appears to be a refund of money for work allegedly not carried out by the builder, the fact that the owner builder is claiming for his own time, indicates to me that the claim is one for damages. As stated, there is no claim by either party arising out of the fact that the parties accepted that the builder would cease doing any more work before all of the work in his quotation had been completed, thus giving rise to an entitlement to damages. In addition the builder has stated that a deduction for Architraves and Skirting has been given. The evidence put forward by the owner builder does not persuade me that he is entitled to the amount of $2,664.00 as claimed. This item of claim is dismissed.
Item 20 'Reflective Foil not installed to timber wall frame'. Amount claimed $311.00. The owner builder has claimed that the builder did not carry out this work and that he was obliged to do so, for which he claims $311.00. It should also be said that it is not suggested that the builder claimed for and was paid for carrying out this work despite the fact that the work was not performed. In the absence of such evidence there is no basis for this claim. It is dismissed.
Item 21 'Overcharging'. Amount claimed $5,520.00. The materials in support of this item of claim as set out in the scott schedule lodged in the Tribunal on 14 January 2014 are, I regret to say, incomprehensible. The evidence put forward by the owner builder in support of this item of claim does not persuade me that he is entitled to the amount of $5,520.00 as claimed. This item of claim is dismissed.
It follows from the reasons set out above that the owner builder will be entitled to an order in his favour in the sum of $15,907.38.
COSTS
Either party is at liberty to make a costs application in these proceedings.
Any costs application pursuant to section 60 of the Civil and AdministrativeTribunal Act 2013 or rule 38 of the Civil and AdministrativeTribunal Rules 2014 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application.
The costs respondent will have 21 days after the date it receives the costs application referred to above, to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
The cost applicant will have 14 days after the date it receives the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal
D Goldstein
Senior Member
Civil and Administrative Tribunal of New South Wales
12 September 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 20 November 2014
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