North v Paul Bongioletti Homes Pty Ltd and Pershouse

[2011] QCAT 134

CITATION: North v Paul Bongioletti Homes Pty Ltd and Pershouse [2011] QCAT 134

PARTIES:	John Robert North
v
Paul Bongioletti Homes Pty Ltd (First Respondent) and Steve Pershouse (Second Respondent)

APPLICATION NUMBER:   BDL256-10   

MATTER TYPE: Building matters

HEARING DATE:     10 February 2011

HEARD AT:  Bundaberg

DECISION OF: Ms Michelle Howard, Member

DELIVERED ON: 18 April 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

1.      That the first respondent pay to the applicant damages in the sum of $15,546.60 within 28 days of the date of this order.

2.      That the first respondent provide 2 durable notices for the under-slab termite management system completed by the pest management company which installed the system within 28 days of the date of this order.

CATCHWORDS: 

BUILDING MATTERS – Domestic building dispute – claim in negligence for economic loss – where subsequent owner – where concreting works completed after builder had left site and final certificate had issued – where builder gave specifications to concreter

Queensland Building Services Authority Act 1991, s 77; sched 2

Bryan v Moloney (1985)182 CLR 609
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Self
RESPONDENT:	Paul Bongioletti, Director (First Respondent) Self (Second Respondent)

REASONS FOR DECISION

1. Mr North (the applicant) bought a house property from a developer in late 2007. He seeks damages of some $15,000 for negligence from the builder of the house, Paul Bongioletti Homes Pty Ltd (the first respondent), and/or the concreter, Steve Pershouse (the second respondent) for the costs of demolishing existing concrete paths around the home, constructing a reticulated termite barrier, and re-concreting. There is also a claim by Mr North for durable notices in compliance with the Building Code of Australia (BCA) for an unrelated under-slab termite system installed in the home.

2. Mr Bongioletti, director and registered builder of Paul Bongioletti Homes, argues that it is not responsible saying that when he left the site, there was a visual termite barrier which complied with the BCA.  Mr Pershouse, a registered concreter, submits that a reticulated termite barrier should have been installed by Mr Bongioletti and that therefore the first respondent is liable.

Evidence in Support of the Claim

1. The applicant signed a contract to purchase the house from Choreto Pty Ltd and Blue Bullet Pty Ltd on 3 October 2007.  He was told that there would be an external termite barrier, namely a visual slab-face termite barrier around the house.  Settlement occurred on 19 November 2007.  He made a complaint to the Queensland Building Services Authority (QBSA) about various issues related to the construction, and he ascertained that the render came too far down the face of the concrete for there to be an effective slab-face termite barrier.

2. During the QBSA complaint, Mr Bongioletti proposed to rectify the problem with a drill and plug system.  This would involve drilling holes into the external concrete path, 30 centimetres apart all the way around the home, 100 millimetres from the external perimeter of the house.  In total, some 260 holes would be required.  Chemical would then be inserted into the holes.  The chemical would require replenishment every 3 years.  This proposal was not acceptable to Mr North.  Mr North says that Mr Bongioletti also offered to install a reticulated system, but later said he had changed his mind about it. 

3. To rectify the works, Mr North proposes that the existing concrete paths be removed; soil laid; a reticulation system installed and charged with chemical; and then the concrete paths re-laid.  To effect this work, an air-conditioning system would have to be moved and subsequently replaced once the work was completed, and would require re-gassing.

4. Mr North obtained quotations for the work.  One quote for the entire works from Amalgamated Pest Control is in the amount of $30,805.70.  Alternatively, Marty Leahy quotes $12,550 to take up the existing path; lay soil; re-concrete; and remove and refit the air-conditioner and gas bottles; Hervey Bay & Maryborough Pest Control quote $2,545.60 to install the termite treatment system; and MVO Services quote $410.00 plus GST of some $41.00 to disconnect and reconnect the air-conditioner.  The second option requires all three quotes, to achieve the same works as the comprehensive quote from Amalgamated, and totals $15,546.60.

5. The applicant asks for the builder to provide valid termite stickers, or durable notices, in compliance with the BCA 3.1.3.2(b) for the under-slab termite treatment installed during the construction of the home which are completed by the pest treatment company responsible for installing it.  He says that the one sticker he received from Mr Bongioletti was only provided after complaints by him and contained ‘whited-out’ portions and was not completed by the pest management company.

6. Michael Rendell, Area Manager, QBSA, Maryborough is a licensed builder.  He inspected the premises after Mr North’s complaint to the QBSA.  He conducted some investigations at the property. 

7. In Mr Rendell’s opinion, the property is not compliant with the BCA 3.1.3.0.  He explained that some of the major structural elements in the house are not protected and that documents showed that termite resistant material was used in the trusses, frames, and some of the mouldings but not all of them.  In particular the window reveals and, probably, the door reveals are not termite resistant.  That being so, he said that the BCA 3.1.3.0 required a termite barrier be in place.  The barrier can be a physical or visual barrier, which is provided by 75 millimetres of clear off-form smooth concrete visible around the perimeter of the house.  This is a slab-face termite barrier.  Alternatively, it can be a chemical barrier, which may be provided through a reticulated system or a drill and plug system.

10. Mr Rendell said that a certifier for a new home would require a visual barrier or a reticulated barrier.  He said that a drill and plug barrier is a remedy used after there has been an infestation and that it is not usual for approval to be given by a certifier for a drill and plug barrier.  He explained that a certifier must be able to satisfy him or her self that this element of the construction is satisfactory.  He believes that the BCA would preclude certification of a drill and plug system.

11. He explained that there is no visual termite barrier at the home because the render extends ‘too far down,’ although the concrete path obscures that fact.  Mr Bongioletti had told him that there was a visual barrier, namely an exposed flat-edge barrier in place, but that it was impossible to see because of the paving in place.  Further, Mr Rendell explained that, obviously, because of the paving, it is not exposed.

12. When Mr Rendell discovered that there was no visual termite barrier, he could not then determine what was there, as he could see render below the exposed slab edge.  For this reason, he commissioned the cutting of the concrete paving around the external perimeter of the house in two places, one on either side of the house to expose the base of the exterior wall and foundations of the house.

13. Once the concrete was cut, he was able to see that on one side of the house, the distance between the foundations and the tool line or iron line was 110 millimetres which was at the same height as the concrete path.[1]  The render extends to the foundations at a depth of some 4 millimetres.[2]  On the other side of the house outside the garage, the distance from the foundations to the tool line was 210 millimetres.[3]  In this instance, from the foundations, upwards for some 110 millimetres, a portion of unrendered slab is visible.  The rendered area then extends upwards to the tool line for 100 millimetres.

[1]        Exhibit 11, photographs 11A-11D.

[2]        Exhibit 11, photographs 11E-11J.

[3]        Exhibit11,  photographs 11K-11P.

14. He said that it was not common for external concrete paving to be at the same height as the slab, as it is at Mr North’s home.  However, Mr Rendell said that if the levels shown in the Slab Plan for the premises[4] accurately depict the construction, there is about 50 millimetres set down from the edge of the slab to the iron joint or construction joint.  As I understand it, this means that the height of the slab at the iron joint would be about 50 millimetres.  If so, he said then the concrete paving currently complies with the minimum requirements of the BCA.

[4]        Exhibit 14 at detail D.

15. Mr Rendell explained that it is the function of the licensed builder to supervise sub-tradesmen.  Therefore, he considered, Mr Bongioletti should have advised the renderer how far the render was to come down.  Similarly, he considered it was the builder’s responsibility to advise the concreter of the levels.  He considered it was not for someone else to have provided them.  However, Mr Rendell could not say who had actually provided them.

16. Mr Rendell expressed the view that the builder had allowed any visual barrier to be compromised by other aspects of the building.  He explained that if a reticulated system was in place, it goes between the top of the footings and the bottom of the slab and underneath the paving, and that it is the responsibility of the builder to ensure that it was in place.  In his opinion, the more economical solution in this situation is to achieve a reticulated system, rather than replace the major structural elements which are unprotected.

17. Mr Rendell produced file notes written by him during the QBSA investigation.  Mr Rendell explained that he accurately and carefully recorded responses given to him and that he made his records within minutes of the conversations he recorded.

18. Mr Rendell had recorded that Grant Davies, on behalf of the developer, had told him that Mr Bongioletti had been paid to do the external paving around the home.[5]  In another file note, Mr Rendell recorded that he was subsequently told by Bill Kitney that Choreto Pty Ltd was the client of the concreter, Mr Pershouse.  Mr Kitney advised him that the concreter had been instructed to check with Mr Bongioletti who had specified and instructed the extent of the works to the concreter.[6]  He then spoke with Mr Pershouse who told him that Mr Bongioletti told him that as the paving was a high traffic area, it was acceptable to reduce the height of the visual termite barrier down to 25 millimetres, when cast against the exposed slab edge.  His note records that Mr Bongioletti then told him that 30 millimetres was an acceptable visual barrier in these circumstances and that the concrete paving was a condition of the contract of sale.[7]

[5]        Exhibit 13, file note dated 5 February 2009.

[6]        Exhibit 13, file note dated 13 March 2009.

[7]        Exhibit 13, file note dated 13 March 2009.

19. In a further file note several months later, Mr Rendell recorded that Mr Bongioletti told him that he did not direct the concreter with levels or instructions, stating that Bill Kitney did so on behalf of Choreto.  He provided Mr Rendell with documents, invoices for the concreting, which were said to evidence the contractual relationship between Mr Pershouse and the developer.  He acknowledged tax invoices for the concreting were not made out to Mr Bongioletti.  He said that he could not be sure on the basis of the information he had where the truth lay, so a direction to rectify this matter was not issued by the QBSA.

20. Mr Rendell acknowledged that a final building inspection had been issued dated 26 October 2007,[8] and that he did not know what the certifier saw at that time. He did not know what further works had been done after that date. However, in his opinion, if the certifier had seen render going down to the foundations, he could not see that a final certificate would have issued.

[8]        Exhibit 4.

21. Mr Rendell tendered the original termite sticker for the under-slab termite treatment.[9]  He was present when the ‘white-out’ over which Amalgamated Pest Control had been written was scratched off to reveal the name, Absolute Termite Solutions.  He provided a series of photographs taken by him or under his instruction at the time this was done.[10]  Mr Rendell tendered a copy of a statement obtained by him from a representative of Amalgamated who confirmed that it had been responsible for installing termite treatment under the slab, having been engaged by Mr Bongioletti.  However, Amalgamated’s representative confirmed that he was not the author of the certificate.[11]  Mr Rendell said that certificates were often placed by the builder after payment to the pest controller, that there were other formats and that he had never seen a ‘whited-out’ sticker provided before.

[9]        Exhibit 17.

[10]       Exhibit 10.

[11]       Exhibit 8.

The Evidence in Response

22. Mr Paul Bongioletti gave evidence on behalf of Paul Bongioletti Homes.  He says he obtained a final building certificate on 26 October 2007 and that his responsibility ended on that date, after which he did not control the site.  He asserts that Grant Davies, a representative of the developer Choreto and Blue Bullet, said the company would finish off the turfing, concreting and driveway and tidy the site.  He says that he did not return to the site and that he was not involved in the organisation of the concreting, and that he did not discuss the concreting with Mr North or Mr Perhouse.

23. Mr Bongioletti said he had been able to ascertain from Childers Concrete and Haulage that the concrete was ordered for the premises on 7 November 2007 and 28 November 2007.  He further says that there is no written evidence of a contract between the Paul Bongioletti Homes and Mr Pershouse.

24. Regarding the termite barrier, he acknowledged that the render went too far down the wall of the house, but said that it could have been fixed if the concrete had not been incorrectly poured too high.  He alleged that the second respondent did not ask him about the height.

25. He denied Mr North’s assertions that he offered to put in a reticulated system.

26. In relation to the termite sticker, he admitted that he had completed the sticker, as Mr Rendell told him to get the sticker urgently.  He said that the sticker was ‘industry standard’.  He told the tribunal that he was able to get the appropriate sticker for Mr North.

27. At the hearing, after the proceeding had been stood down during the lunch period, Mr Bongioletti sought to tender a statement of Mr Grant Davies in evidence in response to Mr Rendell’s file note regarding a conversation with him.  This evidence was allowed since Mr Rendell’s evidence about the file note had not been available prior to the hearing.

28. Mr Davies said that Bill Kitney, whom he described as a person who did some work for Chereto and Blue Bullet on the estate, although apparently not a registered builder, and whom he said was neither an employee or a contractor, organised for the second respondent to do the concreting.  His statement,[12] which had been prepared during the lunch period, asserts his recollections about the conversation with Mr Rendell, after which Mr Rendell recorded that Mr Davies had told him that Mr Bongioletti had been paid for the concreting.  Mr Davies says that he thought that Mr Bongioletti may have been paid for the work but that he would need to check.  He does not suggest that he conveyed these thoughts to Mr Rendell.  He asserts that upon checking, he found that the concreter invoiced the developer and was paid directly by it, after the building contract was finalised.

[12]       Exhibit 18.

29. Mr Davies also gave oral evidence.  Mr Davies said that he could not recall the conversation with Mr Rendell, but he did not think he would have been as conclusive as Mr Rendell’s note suggests.  He said he recalled looking at who had been paid, but did not contact Mr Rendell to advise him.  He said that, in providing his evidence, he was relying on his memory: he had not looked at the information since and did not have any relevant documents with him.

30. Mr Pershouse said in his affidavit that he was engaged by Paul Bongioletti Homes to do the concreting works.  However, at the hearing he confirmed that Bill Kitney had asked him if he would like to quote and showed him the premises.  He asked Mr Kitney for the general widths required.  He told him to contact Mr Bongioletti who had the plans and all of the information about the premises.  He said he then obtained directions over the telephone from Mr Bongioletti that the path was to be 900 millimetres wide, along the side of the house, and that a full width driveway was required, 6 metres in length and a path to the front door.  A back path was to go to the back door only.  He asserts that he gave the quote to CBD Realty.  Bill Kitney had told him that Mr Bongioletti would probably pay him, and he asked if someone else could be responsible because he wanted to be paid and paid promptly.  He said it had been his experience that Paul Bongioletti did not pay promptly.  Bill Kitney subsequently told him that he could invoice CBD Realty.

31. He says that he could see that the render had broken the tool line for a visual termite barrier.  He says that he raised this with Paul Bongioletti who said it was ‘all ok’ and to go ahead and do the job concreting up to the tool line.  He then did so in reliance on this advice.  He is aware that with termite systems it is not appropriate to dig around as you can affect the effectiveness of the systems and void the warranty, so he confirmed with the registered builder that it was appropriate to go ahead, and he accepted Paul Bongioletti’s word.

The Legal Framework

32. The tribunal has jurisdiction to decide building disputes pursuant to section 77 of the Queensland Building Services Authority Act 1991 (the QBSA Act). A building dispute includes a domestic building dispute[13] which is defined to include a claim in negligence ‘related to the performance of reviewable domestic work other than a claim for personal injuries’.[14]  Reviewable domestic work means domestic building work under the Domestic Building Contracts Act 2000 with some exceptions which do not apply.[15] Under the QBSA Act, the tribunal may make orders to resolve a building dispute including making orders awarding damages; and orders for rectification or completion of defective or incomplete work.[16]

[13] QBSA Act, Schedule 2.

[14] QBSA Act, Schedule 2.

[15] QBSA Act, Schedule 2.

[16] QBSA Act, s 78.

33. In general terms, in a claim for negligence, an applicant must demonstrate that the respondent owed him a duty of care; that the respondent breached that duty by failing to take reasonable care; that the breach of duty resulted in injury or damage to the applicant; and that the injury or damage complained of was not too remote a consequence of the breach of duty.  The High Court of Australia has held that a professional builder may be liable in negligence for damages for pure economic loss suffered by a subsequent purchaser.[17]  A duty to take reasonable care to avoid foreseeable economic loss may be owed to a claimant who is a member of a restricted class of potential claimants and is vulnerable: the vulnerability will arise as a result of the claimant’s inability to protect himself or herself from the lack of reasonable care.[18]

[17]Bryan v Moloney (1995) CLR 609; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.

[18]       Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.

Discussion of the Evidence

34. Mr Rendell gave expert and independent evidence in a thoughtful and helpful manner.  I accept his evidence.  The only real challenge to his evidence, was in respect of the file note about his conversation with Mr Grant Davies.  However, Mr Davies does not say that Mr Rendell inaccurately recorded what he told Mr Rendell.  He seems to say that he did not think he would have been so definite in his answer to Mr Rendell’s enquiry and that he was unsure whether he was accurate in what he told Mr Rendell.  Subsequently, he checked.  Having done so, and discovered he was wrong, he says that he did not tell Mr Rendell that this was so.

35. I did not find Mr Davies a helpful witness.  His evidence was vague and  implausible in some respects.  His statements about the basis on which Bill Kitney, as neither an employee or a contractor was working on the site, and apparently arranging contractors for the developer, although he was not himself a builder, appeared evasive and unhelpful.  No other explanation was given about the basis on which he was engaged or might have been organising contractors was offered.  It appeared a deliberate attempt to distance the developer from Mr Kitney and anything he might have done or said, although the purpose of that is not immediately apparent.  Also, why he would make a statement to Mr Rendell while thinking something else might be the case, was not explained.  He admitted that he was relying entirely on memory to give the information to the tribunal, having not it seems, looked at any relevant information recently.  On the other hand, Mr Rendell had made his file note very shortly after the conversation and I accept that he accurately recorded it.

36. Mr Bongioletti says that there was a visual slab-face termite barrier in place when he left the property at the time of the final certificate.  He relies upon the final building certificate as evidence that there was a visual termite barrier in place at certification, acknowledging, it seems, that if there had not been a termite barrier, then certification would not have been obtained.  However, he acknowledged at the hearing that the render came too far down the wall on the side where it meets the foundations, and that this had broken the termite barrier.  There is no suggestion that the rendering was done after certification.  It is apparent that certification was obtained, despite this defect.

37. When the QBSA investigated, Mr Bongioletti told Mr Rendell that there was a flat-edge barrier in place, but that it could not be seen because of the concrete paving.  Of course, as Mr Rendell pointed out, because of the paving, there was in fact no exposed flat-edge barrier in place.  In any event as Mr Rendell explained because of the render going down too far, irrespective of the concrete paving, there was not an exposed flat-edge barrier in place.

38. Mr Bongioletti denies engaging Mr Pershouse to do the concreting works or giving Mr Pershouse the specifications for the concreting works.  He denies any involvement in organising the concreting and says he did not discuss it with Mr North or Mr Pershouse.  He relies upon the fact that the concreting works were done after the final certificate issued.  He says that he no longer had control of the site.  He also says that the concrete was billed to Mr Pershouse, who then billed CBD Realty rather than him.  He says that there is no written evidence of a contract between Paul Bongioletti Homes and Mr Pershouse.

39. Mr Pershouse, in his affidavit says that Mr Bongioletti engaged him to do the work, but clarified at the hearing the sequence of events leading to his engagement, the manner in which he was received instructions from Mr Bongioletti and payment arrangements.  He says that Mr Bongioletti told him the width of path required, and the size of the driveway.  In relation to the termite system, he says that he could see that the render had broken the tool line and specifically raised this with Mr Bongioletti who told him to go ahead and concrete to the tool line.  This is consistent with Mr Rendell’s file note of a discussion with Mr Pershouse to the effect that Mr Bongioletti had told him that it was acceptable to reduce the height of the visual barrier down to 25 millimetres when cast against the exposed slab edge.

40. Mr Bongioletti’s denial that he provided any specifications is inconsistent with Mr Rendell’s file note of a conversation with Mr Bongioletti, during which he advised Mr Rendell following on from Mr Rendell’s discussions with Mr Kitney and Mr Pershouse, that 30 millimetres was an acceptable visual barrier in these circumstances.

41. It was not until several months later that Mr Rendell recorded that Mr Bongioletti told him, inconsistently with his earlier statements, that he did not direct the concreter.  At that later stage, he also provided Mr Rendell with documents which were said to evidence a contractual relationship between Mr Pershouse and the developer.

42. Also, Mr North says that Mr Bongioletti proposed to rectify the problem during the QBSA complaint process with a drill and plug system and later a reticulated system although he changed his mind, according to Mr North about the reticulated system.  Mr Bongioletti denied having offered to install a reticulated system, but did not take issue that he had offered a drill and plug rectification.

43. In my view, it is ultimately irrelevant that the concreting works were done after a final certificate had been issued for the premises.  It is also irrelevant in whose name the concrete was ordered and who was billed for the works by Mr Pershouse and who made the payment to him.  Similarly, it is irrelevant that there was no written evidence of a contract between Mr Bongioletti and Mr Pershouse.

44.  The issue is whether Mr Bongioletti instructed Mr Pershouse regarding the specifications for the concreting works.  Mr Rendell gave expert evidence that it is the role of the registered builder to instruct sub-contractors on a building project.  There is no issue that Paul Bongioletti Homes built the home.  Other than his own subsequent inconsistent statement to Mr Rendell and denials in the proceeding, the evidence suggests that Mr Bongioletti did instruct Mr Pershouse on the specifications for the concreting.  The statements made to Mr Rendell by Mr Kitney, Mr Pershouse and the earlier statements of Mr Bongioletti himself, as well as the statement made by Mr Davies to Mr Rendell are consistent with this.  It is reasonable to infer that Mr Bongioletti did instruct Mr Pershouse.  It is also consistent with Mr Bongioletti’s earlier preparedness to rectify the problem by way of, at least, a drill and plug system.  It is reasonable to infer that he did this because of his involvement.  I draw these inferences and I reject Mr Bongioletti’s denials that he instructed Mr Pershouse.

45. Further, I accept that Mr Pershouse specifically raised questions with Mr Bongioletti about the termite barrier and was told by Mr Bongioletti that it was appropriate to proceed and the basis on which to do so, as this is consistent with the file notes of Mr Rendell of his conversations with Mr Pershouse and Mr Bongioletti, before Mr Bongioletti’s subsequent recanting of his involvement as recorded in Mr Rendell’s later file note.

46. Mr Pershouse is a licenced and professional building contractor, namely a concreter.  He, like Mr Bongioletti has specialist knowledge, although his knowledge is in a more limited field.  Mr Pershouse says that he specifically asked questions of Mr Bongioletti relating to the termite barrier.  I accept that he did.  He was aware that digging around could compromise the effectiveness of any termite barrier.  He did not know what was in place and therefore had to rely upon advice received from the builder responsible for the construction, in keeping with Mr Rendell’s evidence that it is the role of the builder to instruct the subcontractors.  Also, accordingly Mr Rendell’s evidence which I have accepted is that, if the Slab Plan accurately depicts the construction, then the concerting meets BCA minimum requirements.

47. There was no challenge to the quotations provided by Mr North and I accept them.

48. In relation to the durable notice for the under the slab termite treatment, there is no issue that the sticker provided was completed not by the pest treatment company, Amalgamated, but by Mr Bongioletti.  He acknowledges this is so and that he can obtain the appropriate notice for Mr North.  Durable notices are required under the BCA 3.1.3.2(b) to be affixed.

Application of the Law

The Termite Barrier

Was there a duty of care owed?

49. The home in question was built by Paul Bongioletti Homes.  Paul Bongioletti is a director of the company and a registered and professional builder.  He had responsibility to instruct subcontractors during the building of the home, and did instruct Mr Pershouse.  Mr Pershouse is also a registered and professional building contractor, namely a concreter who did concreting works at the home.

50. The home is a permanent structure and represents a significant investment to a purchaser.  Mr North purchased the home from the developer, Choreto and Blue Bullet, who commissioned the building of the home.  In the event of negligent construction of the home, or some aspect of it, it was foreseeable that this was likely to cause economic loss to a subsequent purchaser of the home, such as Mr North.  Mr North was vulnerable in the sense that he was not in a position to protect himself from a failure by Paul Bongioletti Homes or Mr Pershouse to take reasonable care in the construction.  I am satisfied that a duty to take reasonable care was owed to Mr North by Paul Bongioletti Homes and to Mr North by Mr Pershouse.

Did Paul Bongioletti Homes Pty Ltd and/or Mr Pershouse breach that duty?

51. The BCA requires that Mr North’s house have an external termite barrier, either a visual or chemical barrier.  It does not have a termite barrier.  Accordingly, the house does not comply with this aspect of the BCA and the home is vulnerable to termite infestation.  The builder has failed to provide the house with a termite barrier.  It has therefore breached its duty to take reasonable care to construct the house with a termite barrier and comply with the BCA requirements for a termite barrier to be in place.

52. I have found that Mr Pershouse had to rely upon the advice from the builder.  He acted as instructed and the evidence of Mr Rendell is to the effect that provided the house was built in accordance with the slab plan, then the concreting complies with the BCA.  Accordingly, I am satisfied that he has not breached his duty of care.

Has Mr North occasioned damage as a result of the breach?

53. Mr North is left with a house which is vulnerable to termite infestation as a result of the breach of the duty of care.  This breach of duty can only be rectified by taking steps to construct a termite barrier.  This will involve significant financial costs for Mr North.  Therefore, Mr North has suffered loss as a result of the breach.

Is the damage too remote?

54. Mr North seeks to rectify the building defect identified, namely the failure to construct a termite barrier in compliance with the BCA.  The damage complained of by Mr North is directly referable to remedying the breach and is therefore, not too remote.

Assessment of Damages

55. Mr North has provided two quotations for the costs of rectifying the defect.  The Amalgamated quote is for $30,805.70.  The other series of quotes for the work total $15,546.60.  Mr North seeks damages in line with the less expensive quote.  This appears a reasonable course to adopt.  I assess damages for Mr North’s economic loss at $15,546.60.

56. I make orders accordingly.

The Durable Notices

Was there a duty of care owed?

57. As established, the builder owes a duty of care to Mr North.

Did Paul Bongioletti Homes Pty Ltd breach that duty?

58. To comply with the BCA 3.3.3.2(b), the builder was required to permanently affix two durable notices in prominent locations advising building occupants of the date of installation of the termite management measure and that should be inspected and maintained.  It has failed to do so.  Again, the builder has breached its duty of care to comply with the BCA.

Has Mr North occasioned damage as a result of the breach?  Is it too remote?

59. Mr North’s damage is that he does not have durable notices in his home in compliance with the BCA.  At some future time when Mr North wishes to sell his home, a prospective purchaser may be concerned if there is no confirmation that a termite management measure was installed as required by the BCA.

60. This is directly referable to the builder’s failure to comply with the requirements of the BCA.

Orders

61. Mr North does not seek damages for this breach of duty.  He seeks provision of the stickers.  Mr Bongioletti says that he can obtain and provide them.  Having regard to the tribunal’s broad powers to make orders to resolve a building dispute, I consider it appropriate to make orders that he do so.

62. I make orders accordingly.