Robert Symes and Kim Louise Filmer v Mick Fabar Constructions Pty Ltd

The applicants, Robert Symes and Kim Louise Filmer, commenced proceedings against Mick Fabar Constructions Pty Ltd in relation to alleged incomplete home building works. They sought to have the matter heard in the Consumer, Trader and Tenancy Tribunal (CTTT). The applicants alleged that the construction company had failed to complete certain works, resulting in a dispute over the adequacy of the building works and the liability for rectification. The court was required to decide whether the construction company was estopped from calling fresh evidence to contradict the owners’ experts’ opinion of reasonable satisfaction regarding the completion of the works. Additionally, the court needed to determine the appropriate scope of the work order, whether the works had been complied with, and whether any incomplete works were still necessary, among other issues.

The tribunal began by considering the nature of the work orders and the evidence presented. It noted that the applicants’ experts had expressed a reasonable satisfaction with the completion of the works, while the construction company presented fresh evidence to the contrary. The tribunal examined whether the construction company was estopped from presenting this new evidence, given that it had not raised these issues earlier in the proceedings. The tribunal concluded that the construction company was not estopped from presenting fresh evidence, as the applicants had not relied on the previous evidence to their detriment. The tribunal found that the fresh evidence was relevant and should be considered in determining whether the works had been adequately completed.

The tribunal proceeded to consider the other issues relevant to the work order, including whether any of the works had been complied with and whether any incomplete works were still necessary. The tribunal found that some of the works had not been adequately completed and that the construction company was liable for the rectification of these works. The tribunal also considered the applicants’ request to convert the work order into a money order, determining that this was not appropriate given the specific nature of the works required. The tribunal ordered the construction company to complete the outstanding works to the satisfaction of the applicants’ experts and to pay any associated costs.