Nyamukuvhengu v Sirj Group Pty Ltd
[2016] ACAT 92
•16 August 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NYAMUKUVHENGU v SIRJ GROUP PTY LTD & ANOR
(Civil Dispute) [2016] ACAT 92
XD 12/2016
Catchwords: CIVIL DISPUTE – contract dispute – building defects
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 48
Tribunal: Senior Member W Corby
Date of Orders: 16 August 2016
Date of Reasons for Decision: 16 August 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 12/2016
BETWEEN:
SHADRECK NYAMUKUVHENGU
Applicant
AND:
SIRJ GROUP PTY LTD
First Respondent
AND:
ELLISTON HOLDINGS PTY LTD
Second Respondent
TRIBUNAL: Senior Member W Corby
DATE: 16 August 2016
ORDERS
The Tribunal Orders that:
Within six weeks of the date of these orders, the first respondent is to file with ACTPLA documents that show an amendment to the approved plans, being the omission of a garage door.
Within seven days of receiving from ACTPLA written confirmation that the action referred to in order 1 has been undertaken, the first respondent must provide to the applicant a copy of that confirmation.
Within six weeks of the date of these orders, the first respondent is to carry out the following work:
(a)Paint handrail.
(b)Repair and paint steel T-Bar above entry.
(c)Repaint meter box.
(d)Paint the quad around the house (one full coat of paint).
(e)Repair and then repaint two eaves panels on the left hand side of the house.
(f)Repair or replace and then repaint plastic strip in the alfresco area.
Within seven days of completion of the work referred to in order 3 the first respondent is to provide written evidence to the applicant that the work has been carried out.
Within six weeks of the date of these orders, the first respondent is to arrange for an inspection and preparation of a report by a suitably qualified tradesperson to identify whether the roof space is fully enclosed and provide that report to the applicant within seven days of receiving it.
Within four weeks of receiving the report referred to in order 5, the first respondent is to arrange for a suitably qualified tradesperson to undertake any work necessary to enclose the roof space.
If any work is necessary under order 6, within seven days of completion of the work the first respondent is to provide written evidence to the applicant that the work has been carried out.
Within four weeks of completing order 5 or, if applicable, order 6, the first respondent is to arrange for a suitably qualified person to eradicate any vermin, including rodents and birds, in the roof space.
Within seven days of completion of the work referred to in order 8 the first respondent is to provide written evidence to the applicant that the work has been carried out.
The first respondent must pay the applicant $34.00, being half the ACAT filing fee, within 28 days of the date of these orders.
The applicant’s claim against the second respondent is dismissed.
………………………………..
President L Crebbin for and on behalf of
Senior Member W Corby
REASONS FOR DECISION
On 28 March 2013 Shadreck Nyamukuvhengu as buyer and the Sirj Group Pty Ltd as seller exchanged contracts for the sale and purchase of a dwelling to be constructed in Bonner, ACT (the dwelling). Settlement occurred on 10 October 2013 (the completion date).
The contract was subject to special conditions whereby the buyer had the right, within ninety days of the completion date, to provide to the seller a list of defects in the dwelling (the defects notice). The seller was obliged to make good those items within three months of receiving the defects notice.
On 3 December 2013 the buyer sent a defects notice to the seller. The buyer asserts that the seller did not make good all of the items in the defects notice. The buyer has applied to the ACT Civil and Administrative Tribunal (the ACAT) for orders in relation to the outstanding items pursuant to section 16(a) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).
In these reasons for decision, when referring to the Tribunal member who heard the matter, the term ‘Tribunal’ will be used.
The matter was heard on 28 June 2016. The applicant/buyer was self-represented. The applicant’s wife, Petronella Kufandirori, also attended the hearing. The applicant and Ms Kufandirori gave oral evidence.
Shaun Iqbal attended the hearing as the authorised representative of the first respondent/seller. Mr Iqbal had dealt with the buyer as the agent and representative of the seller. Mr Iqbal gave oral evidence.
Petro Martiniello attended the hearing as the authorised representative of the second respondent/builder. The seller had engaged the builder to construct the dwelling. Mr Martiniello had firsthand knowledge about some of the incidents relevant to the dispute between the buyer and the seller. Mr Martiniello gave evidence.
Defects notice and maintenance period
The contract included a schedule of inclusions which set out the items, and in some cases the materials and finishes, that would be included in the construction of the dwelling and the agreed price.
The contract included special conditions. Condition 1 stated:
1. Construction and Maintenance
(i)The Seller shall pursuant to Clause 14 hereof cause to be erected a dwelling substantially in accordance with the plans and specifications (called “the Plans”) annexed hereto.
(ii)Within ninety (90) days of the date of completion or occupation of the land by the Buyer, whichever is the sooner, (called “Defects Liability Period”) the Buyer may serve notice (called “Defects Notice”) on the seller specifying any defects or faults apparent in the construction of the improvements.
(iii)The Seller agrees that it will make good those defects and faults (collectively called “Defects”) specified in the Defects Notice which are due to defective and improper materials or bad workmanship on the part of the Seller:
a.If the Defects concern:
i.Electricity and/or gas supply or distribution;
ii.Sewerage or drainage; or
iii.Any portion of the improvements, the defect in which could lead to damage to any of the Buyer’s chattels or interfere with the proper use and enjoyment of the improvements by the Buyer as the home of the Buyer;
as soon as practicable after receiving the Defect Notice; and
b.in any other event within three (3) months after receipt of the Defects Notice.
(iv)….
(v)…..The provisions of this clause shall not merge upon completion.
(vi)Other than for matters covered directly by clause 1(iii)(a) above, the buyer may submit only one Defect Notice during the Defects Liability Period.
(vii)The Buyer must make the dwelling available at the time or times notified by the Seller, to the Seller or the Seller’s tradesmen to permit the rectification of the Defects in a prompt and timely manner.
On 3 December 2013 the buyer sent the seller’s agent, Mr Iqbal, a defects notice (the defects notice) listing items which the buyer wanted rectified pursuant to special condition 1 of the contract. Other than the matters identified in special condition 1(iii)(a), the buyer was only entitled to send one defects notice within the ninety day period.
The buyer asserts that some of the matters identified in the defects notice remain outstanding. The buyer has applied to ACAT for orders that the seller be required to undertake these outstanding items.
Orders made 28 June 2016 at the conclusion of the hearing
At the conclusion of the hearing the Tribunal made the following orders:
1.Mr Iqbal on behalf of the 1st Respondent will provide to the Applicant by COB 14 July 2016 a complete copy of the amended floor plans for Block 10, Section 142 Bonner (the 'property') being the amended plans relied on by the Certifier when certifying the property in relation to the Certificate of Completion (No. 73206) and Certificate of Occupancy and Use (No. B20132422C1) issued on 23 Sep 2013.
2.Mr Iqbal on behalf of the 1st Respondent will arrange for an electrician to attend at the property by COB 14 July 2016 at a time agreed in writing with the Applicant to install 2 additional down lights in each of the following rooms -
(a) the kitchen;
(b) the family/meals area; and
(c) the rumpus room.
It is noted: that completion of this work on behalf of the 1st Respondent will be in full and final satisfaction of any claim relating to electrical issues concerning the property and arising out of the agreement for sale of the property between the parties dated 28 Mar 2013 and completed on 10 Oct 2013.
3.Mr Iqbal on behalf of the 1st Respondent will arrange for a tradesperson to attend at the property by COB 14 July 2016 at a time agreed in writing with the Applicant to install in the en suite bathroom a 600mm chrome towel rail to be supplied by the 1st Respondent.
4.(a) The Applicant is to email ACT Planning and Land Authority (ACTPLA) in writing (cc the 1st Respondent's representative Mr Iqbal) requesting ACTPLA to advise the Applicant and Mr Iqbal (on behalf of the 1st Respondent) in writing by 14 July 2016 whether the horizontal railing of the deck outside the laundry at the property (as shown in Exhibit A12) complies with ACT planning requirements. It is noted: that the 2nd Respondent's representative advised that if written information is provided to the 1st Respondent's representative in accordance with this order that notice to the 1st Respondent will [be] sufficient notice to the 2nd Respondent and no further notice to the 2nd Respondent is required.
(b) The Applicant or the 1st Respondent is to provide to ACAT and all other parties the ACTPLA response to the request referred to in order 4(a) within 5 days of receipt of that response. If ACTPLA advises in writing that the horizontal railing -
(i)is compliant with ACT planning requirements, THEN the Tribunal makes no further order and the Applicant's claim in respect of the railing is dismissed; or
(ii)is not compliant with ACT planning requirements, THEN the Tribunal orders that the 1st Respondent is required within 21 days of receiving that written advice from ACTPLA to arrange for tradespeople to attend at the property at a time agreed with the Applicant in writing to carry out and complete the work necessary so that the railing fully complies with ACT planning requirements identified by ACTPLA.
5.Mr Martiniello on behalf of the 2nd Respondent will attend at the property on Friday 1 July 2016 with a painter.
(a) On 1 July 2016 Mr Martiniello and the painter will inspect -
(i)the paintwork and installation of 'plastic housing' installed in the Al Fresco outside area; and
(ii)the paintwork of the porch; and
(iii)the paintwork of all eaves at the property (noting that when the Applicant referred in his ACAT application to the 'facade' the Applicant intended to refer to the 'eaves').
(b) After the inspection on 1 July 2016, the Applicant or the 2nd Respondent will provide to ACAT and all other parties in writing within 7 days -
(i)details of any agreement reached between the 2nd Respondent and the Applicant for painting or repair work to be carried out in relation to paragraph 5(a) above. Any agreement will be recorded by ACAT as consent orders in respect of those agreed matters ; and or
(ii)of any issues in relation to the Applicant's claim for orders in respect of the matters set out in paragraph 5(a) that are unresolved by agreement pursuant to paragraph 5(b)(i) above. In relation to any unresolved issues the Tribunal will consider and make orders in response to the Applicant's claim based on the evidence provided at the hearing on 28 June 2016.
The Tribunal Orders:
6.Except as determined by consent or otherwise by the operation of orders 1 to 5 of these orders, the Tribunal reserves it decision in relation to the Applicant's claim for orders in relation to -
(a) the construction of a retaining wall;
(b) the failure to use bricks in the area above doors and windows in the external walls;
(c) gaps in the roof;
(d) pump for the water tank; and
(e) any outstanding claim following the operation of orders 1 to 5 of these orders.
Orders 2 and 3 were by consent. The Tribunal will not further address those matters.
In relation to orders 1, 4 and 5 the parties were to provide further information to ACAT and/or each other.
At the conclusion of the hearing the Tribunal reserved its decision in relation to the matters identified in order 6, which included any outstanding matters arising from the provision of the further information referred to in orders 1, 4 and 5.
The parties filed further information in relation to orders 1, 4 and 5.
In these reasons the Tribunal deals with compliance with orders 1,4 and 5, and the outstanding issues in order 6.
Order 1 – Plans re omitted garage door
The buyer provided plans of the dwelling held by ACT Planning and Land Authority (ACTPLA). These plans show a door to the garage. There is no dispute that prior to settlement the parties agreed that this door would be omitted. The Tribunal accepts that the buyer was not happy about this, but ultimately agreed to it and settlement proceeded. The settlement figures were adjusted to reflect this agreement.
The Tribunal accepts that the omission of the garage door is an amendment to the plans that does not require ACTPLA approval. However, the buyer seeks an order that the seller corrects the plans of the dwelling filed with ACTPLA to reflect this amendment.
The Tribunal orders:
(a)within six weeks the first respondent is to file with ACTPLA documents that show an amendment to the approved plans, being the omission of the garage door; and
(b)within seven days of receiving from ACTPLA written confirmation that the action referred to in paragraph (a) has been undertaken, the first respondent must provide to the applicant a copy of that confirmation.
Order 4 – deck railings
The buyer provided a letter advising that ACTPLA does not require railings on decks that are less than one metre high. The deck outside the laundry is less than one metre high. Based on this further information the applicant’s claim that the horizontal railings to the deck near the laundry be replaced is dismissed.
Order 5 – painting/external maintenance
The second respondent filed an inspection report prepared by Stretco Maricic that identified the following work items:
(a)Handrail to be painted.
(b)Steel T-Bar above entry to be fixed and repainted.
(c)Meter box to be repainted.
(d)The quad around the house needs to be painted (one full coat).
(e)Two eaves panels on the left hand side of the house need to be re-painted.
(f)The plastic strip in the alfresco area needs to be repaired or replaced and then repainted.
No party filed any further information. The buyer identified painting and finish of external areas of the dwelling in the defects notice. Based on Mr Maricic’s report the Tribunal is satisfied that the work identified by Mr Maricic (items (a) to (f) inclusive above) falls within the operation of special condition 1(iii) of the contract.
The Tribunal orders that:
(a)Within six weeks the first respondent is to carry out the following work:
(i) Paint handrail.
(ii) Repair and paint steel T-Bar above entry.
(iii) Repaint meter box.
(iv) Paint the quad around the house (one full coat).
(v) Repair and then repaint two eaves panels on the left hand side of the house.
(vi) Repair or replace and then repaint plastic strip in the alfresco area.
(b)Within seven days of completion of the work referred to in paragraph (a) the first respondent is to provide to the applicant written evidence that the work has been carried out.
Order 6 – outstanding issues
The outstanding issues are as follows:
(a)Construction of the retaining wall.
(b)Failing to use bricks in the area above some doors and windows in the external walls.
(c)Failure to enclose roof space.
(d)Installation of a pump for the water tanks.
Retaining wall
The buyer says that prior to the agreement the seller’s agent showed him other properties that were under construction. The buyer observed that rock was used to construct the retaining walls at those properties. The buyer says that prior to him signing the contract the builder had noted that it would cost more to construct a rock retaining wall than a ‘sleeper’ retaining wall. The buyer says that the agreed price included the additional cost for a rock retaining wall.
The buyer’s building report, signed by Ken Roche of ACTPRO on 10 October 2014, states that the retaining wall is “supposed to be constructed of stone”. However the report does not suggest that this is a planning requirement. In the absence of evidence to the contrary, the Tribunal concludes that this statement reflects advice given to Mr Roche by the buyer when the report was prepared, rather than a contract requirement.
The seller gave evidence that the parties agreed that the dwelling would include some additional items such as a rumpus room and study and it was these, rather than the cost of a rock retaining wall, which resulted in an increase in the agreed price. The seller gave evidence that there is no planning requirement in relation to the materials to be used in the construction of the retaining wall. The seller asserts that the sleeper retaining wall was approved and is adequate.
There is no mention of the retaining wall in the schedule of inclusions. The plans do not show the retaining wall or specify the materials to be used. Special condition 6 of the agreement confirms that the written agreement sets out the entire agreement between the parties. Neither party is entitled to rely on prior agreements or representations. There is no evidence that ACTPLA required the retaining wall to be constructed of stone.
The Tribunal is satisfied that there is no basis for ordering the seller to replace the sleeper retaining wall with a stone retaining wall. This claim is dismissed.
No bricks above some doors and windows
The buyer says that the drawings in the plans show that there is brickwork above all doors and windows in the dwelling. The schedule of inclusions under the heading ‘External finish’ states “Face brick walls of house”. The buyer tendered a photograph to show there was no brickwork above some of the windows. Photographs attached to the buyer’s building report and the photographs of the dwelling tendered by the seller confirm that there is brickwork above some of the external windows and doors.
The buyer gave evidence that instead of bricks, a sheeting material called ‘villaboard’ was used to finish the walls above some external doors and windows. The buyer seeks an order that the seller now replace the areas where villaboard has been used with bricks.
The seller gave evidence that the drawings are merely a representation and do not require the seller to construct the building to exactly match these drawings. Rather, it is the approved plans and the agreement that are relevant. The seller asserts that the external walls are constructed of brick. Only the areas above some external windows and doors are finished with villaboard. The materials used and construction of the face walls is therefore substantially in compliance with the contract. In addition, the buyer undertook inspections during construction and prior to completion of the agreement. The dwelling complies with building requirements and the Certificate of Occupancy and Use dated 23 September 2013 evidences this. The seller pointed out that there was no mention of this aspect of the dwelling in the buyer’s building report.
The builder gave evidence that it is more expensive and complicated to insert windows and doors into a brick frame. For that reason villaboard was used to close the gap above the windows and doors after the windows and doors were installed in some of the external walls.
The Tribunal is satisfied that, apart from the areas above the some of the external windows and doors, the face walls of the dwelling are constructed of brick. The dwelling as constructed is code compliant. There is no evidence of defective materials or bad workmanship in the areas where villaboard was used. There is no evidence that villaboard is an improper material to use for this purpose.
The Tribunal acknowledges that the buyer raised this issue in the defects notice. However the Tribunal is not satisfied that this is a matter that comes within the operation of special condition 1(ii) or (iii) of the agreement. This claim is dismissed.
Failure to enclose roof space
The buyer says that the roof space was not completely enclosed and as a result rodents and birds entered the roof space. The buyer gave evidence that he and his family have heard ‘things’ moving and making noises in the roof space. The buyer and his family are concerned that animals in the roof space may be a health risk and may damage the electrical wiring.
The buyer’s building report states that “birds are entering the roof space in two places” and that the “roof area to the patio requires finishing.” The buyer tendered a termite inspection report by Enviropest dated 23 June 2016. The report states that there was evidence of mice and rats in the roof void.
The buyer and the builder gave evidence that the builder inspected the roof. He found an area where the tiler had not completely sealed the roof space. The Tribunal accepts this was a result of bad workmanship within the meaning of special condition 1(iii) of the agreement.
Mr Martiniello gave evidence that he repaired this gap. Mr Martiniello said that he inspected the rest of the roof and found no further gaps, however if further gaps do exist he is willing to repair them. Although there was some dispute as to the date of the inspection and repair by the builder, the Tribunal is satisfied it was after preparation of the buyer’s building report on 10 October 2014.
The seller relies on Mr Martiniello’s evidence and says there are no further gaps. The seller and the builder say that rats and mice can find their way into roof voids even when the roof space is enclosed. The seller and the builder assert that this is not an issue that the seller should be required to address.
The Tribunal is satisfied that the roof space was not fully enclosed. The seller did not take action to address this problem until, at earliest, October 2014. This is twelve months after the date of completion. Mr Martiniello repaired one gap. The Tribunal accepts that there is evidence of rodents in the roof space in June 2016. Animals and birds could have entered the roof space through the gap before Mr Martiniello did the work. The buyer asserts that the roof space is not yet fully enclosed. The buyer’s building report states that there were two gaps. There is no dispute that it is a building requirement that the roof space be enclosed.
The Tribunal is satisfied that this issue has impacted on the buyer’s and his family’s ‘use and enjoyment’ of the dwelling within the meaning of special condition 1(iii)(a)(iii) of the contract.
The buyer submits that an order requiring the seller to arrange for pest control would only address the ‘symptoms’ and not the cause of the problem. The Tribunal is satisfied that the seller is obliged to confirm that the roof space is enclosed. Once that is established, or work is undertaken so that the roof space is fully enclosed, the seller is required to arrange for pest control to deal with rodents, and possibly birds, living in the roof space.
The Tribunal orders that the first respondent:
(a)within six weeks arrange for an inspection and preparation of a report by a suitably qualified tradesperson to identify whether the roof space is fully enclosed, and provide that report to the applicant within seven days of receiving it;
(b)within four weeks of receiving the report referred to in paragraph (a) undertake any work necessary to enclose the roof space;
(c)if work is necessary under paragraph (b), then within seven days of completing the work to provide written evidence to the applicant that the work has been carried out;
(d)within four weeks of completing paragraph (a) or, if applicable, paragraph (b) arrange for a suitably qualified person to eradicate any vermin, including rodents and birds, in the roof space; and
(e)within seven days of completion of the work referred to in paragraph (d) provide to the applicant written evidence that the work has been carried out.
Pump for the water tank
Water tanks were installed at the property. The parties agree that they do not have pumps. The buyer submits that as a result they are of limited use. There is a tap at the base of the tanks but the water is not otherwise accessible.
The buyer says that the seller had assumed that a pump was installed with the water tanks. The seller does not deny the buyer’s assertion, but relies on the schedule of inclusions which states “Slimline rain water tank as per plan.” The seller says that neither the plan nor the planning rules require that a pump be attached to the water tank. The seller noted that the tanks were installed in a way that allows for a pump to be retro-fitted. There is no reference to the water tanks in the buyer’s building report.
The schedule of inclusions does not refer to a pump. No evidence provided suggests that this is a requirement of ACTPLA or otherwise. The Tribunal accepts that the water tanks would be of more use if a pump were installed. However the Tribunal does not consider that this is a matter that falls within the operation of special condition 1(ii) of the contract.
This claim is dismissed.
Conclusion
The applicant sought an order that the respondent/s pay him the ACAT filing fee. If orders are made in favour of an applicant then section 48(2)(a)(i) of the ACAT Act gives the Tribunal a discretion to order another party to pay the applicant the ACAT application fee. The applicant has been, in part, successful in his claim. Given the orders the Tribunal has made in this matter, the Tribunal is satisfied the first respondent should pay the applicant $34 being half the ACAT application fee of $68 within 28 days.
The Tribunal is not satisfied that there is any basis for the applicant’s claim against the second respondent. The claim against the second respondent is dismissed.
The orders made on 28 June 2016 and the further orders made today deal with all of the applicant’s claims in this matter.
………………………………..
President L Crebbin for and on behalf of
Senior Member W Corby
HEARING DETAILS
FILE NUMBER: | XD12/2016 |
PARTIES, APPLICANT: | Shadreck Nyamukuvengu |
PARTIES, FIRST RESPONDENT: | Sirj Group Pty Ltd |
PARTIES, SECOND RESPONDENT: | Elliston Holdings Pty Ltd |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member W Corby |
DATES OF HEARING: | 28 June 2016 |
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