Seok Wong v Doumit Building Pty Ltd t/as Unicorn Building and Repairs
[2014] NSWCATCD 15
•16 January 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Seok Wong v Doumit Building Pty Ltd t/as Unicorn Building and Repairs [2014] NSWCATCD 15 Hearing dates: 30 September 2013 Decision date: 16 January 2014 Jurisdiction: Consumer and Commercial Division Before: G Meadows, Senior Member Decision: The application is dismissed
Legislation Cited: Home Building Act 1989 Category: Principal judgment Parties: Seok Wong (Applicant)
Doumit Building Pty Ltd t/as Unicorn Building and Repairs (Respondent)File Number(s): HB 13/29706
reasons for decision
Application
This application was filed on 6 June 2013, soon after my decision in matter number HB 12/34963 was published on 1 May 2013. In the earlier application, the applicant homeowner had claimed, initially, of water ingress from defective water proofing on balconies causing various kinds of internal damage to the premises, water penetration from "higher external ground into Entry level" causing internal damage and efflorescence on balcony tiles and garden walls, pursuant to the Home Building Act 1989 ("the Act"). The original claim was considerably expanded, especially in relation to the amount claimed as required to rectify the alleged defects. As will be discussed further below, I found the homeowner's evidence, particularly expert evidence, to be unsatisfactory and that she had not proved many of the items claimed. Out of a claim for about $130,000.00 (at the time of the hearing of that matter), I allowed less than $11,000.00.
The current application claims as follows:
"On 8 May 2013, water was found dripping down the Family room ceiling despite dry weather and the source was traced back to a leaky pipe in the bathroom above the ceiling.
Water also continues to drip down the Entry, Garage and Stairwell ceilings and walls which are located underneath the 2 south balconies with 2 planter boxes. The Defendant [sic] had blamed the planter boxes for the water ingress but they are now re-waterproofed and water still continues to penetrate.
This application seeks to recover costs:
(1) for building inspection report by Sydney Property Inspections (NSW) P/L dated 8 May 2013 for $450.00.
(2) to repair leaky water pipe in Bed 1 en-suite bathroom by Surefix Plumbing dated 8 May 2013 for $324.50.
(3) to repair rotten timber on rear north roof flashing and reseal by JVR Waterproofing quoted 12 May 2013 for $316.00.
(4) to re-waterproof 2 south balcony planter boxes by JVR Waterproofing quoted 12 May 2013 for $1,062.00.
(5) to re-waterproof 2 tiled south balconies by Megasealed quoted 13 May 2013 for $11,575.00.
(6) to repair and repaint affected ceilings, walls and floors by Metta Constructions quoted 14 May 2013 for $10,340.00.
Total: $24,067.50."
During interlocutory proceedings, the preliminary issue has arisen as to whether the applicant is entitled to maintain this application or parts of it. On 25 July 2013, Senior Member Bordon made orders inter alia in relation to this issue which encapsulated the preliminary issue itself, as follows:
"1. The applicant shall provide to the respondent and the Tribunal, a copy of all documents including a statement on which the applicant intends to rely at the preliminary hearing whether the applicant is entitled to enforce a warranty for a deficiency of a different kind to the one to which HB 12/34963 relates under section 18E of the HBA by 08-Aug-2013". [Emphasis added]
The respondent was also ordered to provide all documents on which the respondent intended to rely by 22 August 2013.
EVIDENCE AND SUBMISSIONS
Applicant's Submissions
The applicant filed submissions and evidence in accordance with the orders made by Senior Member Bordon on the due date. These included a statement of some 2.5 pages headed "Relief under HBA sec.18E(2)".
The applicant first summarises s18E(2) of the Act and then submits that:
"3. T]his claim HB 13.29706 alleges that the work is deficient in a different respect which was not knowable, nor could it have been knowable, at the time of my previous application. This claim is within the statutory limit of the warranty".
4. The 3 deficiencies which are alleged in this application are:
i. A leaky bathroom pipe;
ii. Inferior and unsuitable timber cover strips which were installed above the rear external roof flashing; and
iii. Non-conforming water-proofing of the balconies and planter boxes."
The applicant then summarises the nature of the first two defects and describes how each one came to her attention.
In relation to the third claimed defect or defects, the applicant notes that
"[o]n 20th May 2013, as part of the rectification works for the defects which were the subject of the First Proceedings [that is, HB 12/34963], I had some tiles and screed on the lower balcony lifted. ... Representatives of Bostik ... attended on 21st May 2013 and confirmed these defects and breaches in their report dated 28th May 2013." The applicant then describes the alleged defects in detail and concludes by stating "[t]he above mentioned defects and breaches constitute deficiencies of a different kind in the work. ... I did not know and could not reasonably have been expected to have known of the existence of these defects at the time of the First Proceedings because it was only during the act of rectifying the work pursuant to my previous application that the deficiencies of the work were discovered."
Respondent's Submissions
The respondent'ssubmission was slightly late but no issue has been taken with that, and I accept the submission.
The respondent considers each of the three defects in turn. In relation to the leaky pipe in the bathroom ceiling, the respondent submits that this "deficiency" has been determined and decided upon in my decision of 1 May 2013. It is noted that in the first proceedings, there was a claim for damage to the family room ceiling, thought to emanate at that time from the balcony adjoining the bathroom. The respondent refers to the expert report provided by it in relation to the first proceedings, by Mr. Stanton, who recommended an amount be allowed for further investigation and remedial works. The respondent also quotes paragraph 25 of my decision of 01 May 2013, in which I stated "[t]he owner's evidence does not allow a proper assessment of the rectification required, or at least the cost of such rectification ..."
In relation to the timber cover strips, the respondent notes that these are not relevant to the water ingress claims, but are in any event subject to s 18 E(2)(b), that is, the claim can only be brought if "the person did not know, and could not reasonably be expected to have known, of the existence of the other deficiency when the warranty was previously enforced". The respondent submits that this claim is prohibited by the section.
In relation to the water proofing of the balconies and planter boxes, the respondent submits that this issue also was determined and decided upon by the decision of 1 May 2013, and indeed "was theprimary claim" in those proceedings. The respondent provides photographic evidence that the planter boxes and the balcony membrane was exposed as early as 2011. The respondent goes on to note and refer to the numerous occasions that this defect or these defects were referred to in my earlier decision.
Finally, the respondent submits that this "second attempt to make a claim" does not fall within the requirements of s 18E(2), because the "other deficiency" referred to in that section is defined as "a deficiency of a different kind in the work".
Applicant's Response
Although there was no order giving leave to the applicant to provide a written response to the respondent's submission, the applicant did provide a brief written response. I have accepted this short submission.
The applicant notes first that the leaky pipe was never mentioned during the first proceedings and did not become apparent until after those proceedings were concluded, and further that no compensation was awarded for this claim.
In relation to the timber cover strips, the applicant accepts this complaint is not alleged to be related to the water leaks, but nevertheless, use of these timber cover strips breached the statutory warranty in s 18B(b). The applicant states that "[t]he positioning of the strips is out of normal lines of vision of occupants. Therefore, the defect was not apparent during my first application in 2012."
The applicant denies that the "non-conforming" water proofing of the balconies and planter boxes was determined in the first proceedings "(as it was not known nor knowable by me) that the type of waterproofing membrane used and method in which it was applied was defective." It is submitted that these deficiencies did not become apparent "until owner repairs began in May 2013 ..." It is further submitted that the work done was not in accordance with the plans and specifications in the building contract.
Consideration and Decision
My consideration and reasons in relation to the leaky pipe claim and the waterproofing claim (items i and iii of this application) should be read in conjunction with the detailed reasons I provided in my decision of 1 May 2013. In my opinion, the respondent is correct in submitting that the particular defects, or rather the damage allegedly caused by them, were included in the first proceedings but were found by me not to have been proved by the applicant in those proceedings, because of a marked lack of expert evidence and a failure to properly investigate the defects. While it is true that a leaky pipe was not at that stage suspected as causing the visible damage in the family room, nevertheless that damage was the, or a, subject of the first proceedings and the failure of the applicant to properly investigate and prepare her case does not mean that she is entitled to bring a further claim in relation to the same damage, this time after having undertaken further investigation.
In relation to the waterproofing, in my view the situation is even more clear. There had been much prior discussion between the parties (that is, prior to the first proceedings) as to the source and cause of the water ingress and its relationship to the planter boxes and balcony membranes - refer to my previous decision. There was no reason why the applicant in those proceedings did not, and every reason why she should, have those issues investigated. The applicant's expert evidence in the first proceedings was practically non-existent and indeed the brief "report" that was provided was rejected by me as being of no assistance. In my opinion my reasons of 1 May 2013 make quite clear why this particular claim is not within the ambit of s 18E(2) of the Act. The reason is, that the applicant in those proceedings certainly could have been expected to know of the alleged water proofing breach had she properly investigated her claim.
Finally, in relation to the timber cover strips, although these may not have been visible to the applicant under normal circumstances, it was still not a difficult problem to have the premises properly inspected by an independent expert and any defect of the type alleged would have been immediately apparent. This defect should and could have been known to the applicant at the time of the first proceedings.
The applicant in the first proceedings had the onus of providing sufficient evidence to prove her case, and to a large extent failed to do so. Each of the defects alleged in the current application were either included in the first proceedings, or should have been, following proper preparation of the claim. It is not that the applicant did not know and could not be expected to have known of the deficiencies alleged, it was as a result of the applicant's failure to have an appropriate investigation conducted and appropriate evidence obtained.
For these reasons, this application is dismissed.
ORDERS
The application is dismissed.
Geoffrey Meadows
Senior Member
Civil and Administrative Tribunal of New South Wales
16 January 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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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: 16 May 2014
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