Staniland v Integrity Homes Pty Ltd t/a Integrity New Homes

[2015] NSWCATCD 90

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Staniland v Integrity Homes Pty Ltd t/a Integrity New Homes [2015] NSWCATCD 90
Hearing dates:	28 October 2014, 30 January 2015. Submissions closed 22 May 2015.
Decision date:	03 August 2015
Jurisdiction:	Consumer and Commercial Division
Before:	J A Ringrose, General Member
Decision:	1 For the purposes of determining renewal proceedings the Tribunal is satisfied that the order relating to rectification of concrete being order for and relating to item 3c of the Schedule included the following additional instructions; “Rectify poor concrete finish and incorrect grades and levels to patio and porch. Demolish and reconstruct.” and the order relating to item 5 of the schedule incorporates the additional instructions detailed in item 5 of the defect schedule. 2 The proceedings are to be stood over to a directions hearing on a date to be fixed by the Registrar and thereafter listed for hearing before me to enable the remaining issues between the parties to be determined. 3 Costs of the present proceedings are reserved to be determined in conjunction with any order for costs of the whole application.
Catchwords:	Enforcement of orders for rectification – orders made following a mediation – enforcement of proceedings – s 43 Consumer, Trader and Tenancy Tribunal Act 2001. Renewal of proceedings arising from tribunal order or whether a new contract arose from agreements reached at mediation.
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act s 48 (repealed)
Cases Cited:	Buckle v Reynell and Anor NSWCTTT 23 April 2007 Vero Insurance Limited v Buckle [2008] NSWSC 73 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248
Category:	Principal judgment
Parties:	Robert Staniland and Kristine Staniland (applicants) Integrity New Homes Pty Ltd t/a Integrity New Homes (respondent)
Representation:	Counsel: Mr G Jensen of counsel appeared for the applicants instructed by Nexus Law.
File Number(s):	HB 13/50125
Publication restriction:	Nil

REASONS FOR DECISION

BACKGROUND

1. On about 14 October 2011 the applicants entered into a home building contract with the respondent for construction of a residence on 2 Lots known as [***] Road, New Lambton. The total contract price was $260,815.00 and it is claimed that a sum of $261,913.00 was paid. It was claimed that the extended contract completion date incorporating inclement weather was 28 June 2012 and practical completion took place when the building works were handed over on 25 September 2012.

2. Apparently a list of defects was prepared by the owners following handover and this was reviewed by other parties at a meeting on 9 November 2012.

3. The applicants commenced proceedings (HB 13/12810) on 5 March 2013 claiming reimbursement of some items, together with the cost of rectification of defects or order that the builder comply with a contract document and undertake rectification work. The proceedings were then listed for a full day mediation before Senior Member Vrabac on 19 July 2013 and on that date the following orders were made;

In full and final settlement of all matters in dispute between the parties, the respondent will carry out the repairs on or before 30 August 2013.

1. Articulation joints (item 1 pink slip).

2. Profile sub-floor/fence (item 2 pink slip).

3. Provide fall to subsoil drain to divest (divert) water away (item 3 pink slip).

4. Item 3c rectify concrete per schedule.

5. Item 5 rectify stacker door per schedule.

6. The respondents will give one week’s notice to the applicant to carry out the repairs.

7. The respondent agrees to pay the applicants expert reasonable fees three spot checks.

8. The respondent will pay the applicant the sum of $22,500.00 on or before 30 August 2013 in full and final settlement of all matters in dispute to date.

APPLICATION

4. On 24 September 2013 the applicants filed the present application (HB 13/50125) seeking an order for payment of $20,000.00 on the basis that works which were ordered to be carried out by the respondent on 19 July 2013 had not been completed.

5. The renewal application was initially listed before me on 29 October 2013 and details of what occurred at that time have been addressed during the course of evidence and submissions from the parties. The adjournment note suggested that parties would endeavour to have an independent builder complete the works at the respondent’s costs in order to settle the matter.

6. The matter was then listed for directions on 10 December 2013 when the matter was again adjourned with the parties being encouraged to obtain advice and have further settlement discussions. Leave was granted to both parties to be legally represented.

7. In December 2013 and January 2014 both parties obtained legal representation and sought an extension of time to enable a transcript of the earlier proceedings to be obtained.

8. By April 2014 the solicitors for the respondent observed that the applicant had filed three expert reports in the proceedings and there had been a delay in sourcing an appropriately qualified concrete consultant to respond to a report of Mr van Koeverden and adjournment was requested to enable the appropriate expert to prepare a report. On 16 April 2014 the Hearing date was vacated and the matter was adjourned to a date to be fixed by the registrar. Parties were again encouraged to obtain advice and have further settlement discussions.

9. On 14 May 2014 the matter was referred to Senior Member Vrabac with a request that he clarify the orders made to rectify the concrete works and as a result the matter was to be listed before a member so that the issue could be determined as a preliminary issue. On 16 July 2014 orders were made that the matter be adjourned to a date to be fixed by the registrar and that the applicants send to the respondent and the Tribunal, a copy of all documents including witness statements on which the applicants intended to rely at the Hearing by 30 July 2014 and that the respondent send to the applicants and to the Tribunal a copy of all documents including witness statements on which the respondent intends to rely at the Hearing by 27 August 2014.

10. On 18 August 2014 by consent of both parties, the hearing in Sydney was vacated and the matter was adjourned to be listed for hearing on the preliminary issue in Newcastle.

11. On 26 August 2014 the solicitors for the respondent sought an extension of time to comply with the earlier directions on the basis that the director of the respondent’s company was overseas and would not be returning until 9 September 2014. On 28 August 2014 time for compliance with the new order relating to the respondent’s evidence was extended to 9 September 2014.

12. On 8 September 2014 a further extension of time was sought by the respondent’s solicitors on the basis that the respondent was still awaiting a report from Mr Docral and Mr Moroney, along with lay evidence from Mr Blackwell. The extension of time was sought on this occasion until 22 September 2014.

13. On 17 September 2014 a further extension of time was sought by the solicitors for the respondent on the basis that Mr Blackwell, the only proposed witness for the respondent was involved in a sporting accident, as a result of which a further extension of time for the filing of the respondents evidence was sought until 26 November 2014 although subsequently the request for extension was amended to 26 September which, it was said, would not affect the current list date of 28 October 2014.

APPLICANT’S EVIDENCE

14. Mr Jensen of counsel sought to rely upon the following documents;

Exhibit A – statement of Robert Staniland 22 October 2013

Statutory declaration of Robert Staniland 24 February 2014

Statutory declaration of Robert Staniland 1 October 2014

Exhibit C – transcript of evidence before Tribunal on 29 October 2013

Exhibit D – statutory declaration of Peter Neilsen 24 October 2014

Exhibit E – the statement of Sharon Rodgers dated 16 October 2014

15. A statutory declaration of Kristine Staniland dated 27 October 2014 was tendered and objected to on the basis that it had been prepared only one day prior to the Hearing. The tender was then not pressed on the basis that no inference would be drawn arising from the failure to tender evidence from Mrs Staniland.

16. Mr Robert Staniland was required for cross-examination and during the course of the Hearing reference was made to various documents in the agreed bundle of documents. References to all documents in the final submissions were made by a referral to the agreed bundle documents.

17. In submissions Mr Jensen noted that the applicants were seeking to enforce orders made by the Consumer Trader and Tenancy Tribunal at a mediation on 19 July 2013 and that they had filed a notice of renewal of proceedings on 24 September 2013. He submitted that the relevant orders made on 19 July 2013 were:- that the respondent was to carry out the following repairs on or before 30 August 2013;

“4 item 3c of the defect schedule rectify concrete per schedule (meaning rectify poor concrete finish and incorrect grades and levels    to patio and porch. Demolish and reconstruct).”

5 item 5 of the defect schedule rectify stacker door per schedule (meaning “stacker door and screen doors – remove damaged doors,    repair and install doors, rectify as required to frame, slab, finishes, tiles and paint. Repair may not be possible and new doors required)”.

18. The Tribunal mediation orders were regularly made pursuant to the statutory powers of the Tribunal and Mr Jensen claimed that they gave effect to the orders intended to be pronounced by the Tribunal as agreed between the parties.

19. He submitted that the mediation orders had never been challenged by the respondent but the respondent had failed to undertake the works required by the orders on or before 30 August 2013 and as a result of the failure, the applicant was entitled to renew the proceedings and enforce Tribunal mediation orders in accordance with s 43 of the Consumer, Trader and Tenancy Tribunal Act 2001.

20. It was submitted that the Civil and Administrative Tribunal of New South Wales was empowered to hear and determine order enforcement proceedings and to exercise all functions that had previously been available to the Consumer, Trader and Tenancy Tribunal immediately before its abolition.

21. When the initial proceedings were listed for mediation before Senior Member Vrabac on 19 July 2013 the Tribunal had sought from the respondent a costing of works and defects claimed by the applicants in the initial proceedings. Mr Blackwell, for the respondent, had emailed Mr Staniland a costing sheet and in response Mr Staniland had emailed a defects schedule attaching the applicants costing which he sought to have included in the orders.

22. Mr Jensen referred to evidence in chief from Mr Staniland and to evidence and cross-examination from Mr Blackwell which, he submitted, established that Mr Staniland and Mr Blackwell had discussed the need for demolition and replacement in order to overcome some incorrect slopes, incorrect levels and poor concrete finish as well as ponding of water on the patio and that they had also discussed the need for new stacker doors in relation to item 5 of the defect schedule.

23. It was noted that following the mediation and a meeting of the parties building experts, the respondent attempted the grinding of the concrete in an endeavour to rectify the agreed defects. The applicants claim that this grinding failed and simply exposed reinforced concrete. They further claimed that the water continues to pool and the sealer is blotchy. It is contended that the respondent, through Mr Blackwell has refused and continues to refuse to take any further steps to rectify the defects referred to as items 3c and item 5 in the schedule.

24. The applicants’ counsel then referred to a directions hearing held on 29 October 2013 where there was a preliminary discussion between the parties of the Tribunal mediation orders and it was claimed that Mr Blackwell admitted that the orders made reference to item 3c of the defect schedule and accordingly that the item referred to a need for demolition and reconstruction.

25. It was submitted on behalf of the applicant that when the parties returned before me following discussion, Mr Staniland had said “I believe we have agreed that the concrete is to be demolished and reconstructed and will have to come back to figure out how it’s paid or dealt with”. Mr Staniland then noted that his cost for the works were in the order of $50,000.00 and that the respondent had a couple of quotes much less than that. It is noted that the proceedings on 29 October 2013 were adjourned to a directions hearing to enable parties to reach an agreement as to the mechanics of achieving demolishing and replacement of the concrete works. Mr Jensen submitted that the applicants may have a right to enforce the agreement reached on 29 October 2013.

26. The applicants provided submissions in reply to the respondent’s submissions and these will be dealt with as necessary in the Tribunal decision.

RESPONDENT’S EVIDENCE

27. The respondent relied upon the evidence contained in a statement of Robert Blackwell dated 30 September 2014. Mr Blackwell was required for cross-examination which took on 30 January 2015.

28. In submission on behalf of the respondent Mr Connolly, solicitor, observed that there were three matters to be addressed, namely;

• 1.1   Whether the orders made on 19 July 2013 mandate demolition and reconstruction or repair.

• 1.2   Whether the present application for renewal was appropriate in light of any agreement to carry out further work? Did the further work involve a new contract? This is what was referred to in the submissions as the “Buckle v Reynell point".

• 1.3   Whether a new and enforceable agreement arose on 29 October 2013 when the matter was before the Tribunal (as presently constituted).

In summary, in relation to each of the three issues the respondent contends;

• 1.1   That the order made on 19 July 2013 did not mandate demolition or reconstruction but rather the repair by grinding.

• 1.2 That the matter presently before the Tribunal is not a renewal pursuant to s 43 of the Consumer, Trader and Tenancy Tribunal Act and that the proceedings are not properly founded and should be dismissed.

• 1.3   That no enforceable agreement was made on 29 October 2013 by an order of Member Ringrose or by an agreement between the parties.

29. In addressing the orders made on 19 July 2013 it was agreed that on 19 July 2013 a copy of the orders was posted to the parties and those orders did not include an attachment, and it was suggested that the attachment was either;

1. The version held by Mr Staniland on which he made notations;

2. The version provided to Senior Member Vrabac on which he made notations or;

3. The version held by Mr Blackwell on which he may have made notations.

30. Mr Connolly argued that Mr Blackwell had provided evidence that the respondent would not consent to demolition or reconstruction of the concrete slabs as he had not been provided with any evidence of water pooling and further as demolition or reconstruction of the entire area was unreasonable. It was submitted that when both or either of the versions of the schedules are considered they mitigate against mandated demolition and reconstruction but in favour of rectification by way of grinding.

31. In relation to the second issue, the Buckle v Reynell point, Mr Connolly submitted that the decisions of Buckle and Buckle v Reynell and Anor NSWCTTT 23 April 2007 and the subsequent decision of Vero Insurance Limited v Buckle (2008)NSWSC 73 were authority for the proposition that the execution of a settlement document where the terms clearly indicate an intent to agree and finally settle the matter bringing about an end to claims and the proceedings before the Tribunal will bring the original building contract to an end. Where parties have executed a settlement document the true nature of the proceedings after the execution of the settlement document is that they are discontinued or withdrawn and there cannot be a renewal of those proceedings under s 43 of the Consumer, Trader and Tenancy Act. It was submitted that the case before the Tribunal is analogous to circumstances in Buckle v Reynell and the orders made on 19 July 2013 were orders made in respect of full and final settlement of the matters in dispute between the parties. Where a new contract remains on foot there may be entitlement to claim damages for delay but there is no entitlement to sue for defective or incomplete work whilst the contract remains alive (see Brewarrina Shire Council v Beckhaus Civil Pty Ltd (2005) NSWCA 248).

32. In relation to the final issue it was submitted on behalf of the respondent that no enforceable agreement was reached on 29 October 2013 either by way of orders or by way of the meeting of minds. It was noted from the transcript of proceedings on that date that there were several issues upon which the parties could clearly not agree on that day and these included a lack of agreement as to who was to do the work and as to what price was to be paid for any work to be done. The matter was referred to a further directions hearing as no enforceable agreement had been concluded on that date.

33. Mr Connolly also addressed matters arising in the cross-examination of Mr Blackwell at the hearing on 30 January 2015 and in conclusion invited the Tribunal to dismiss the application and require parties, in due course to make submissions on costs.

DECISION

34. On 5 March 2013 the applicants, as the owners of the property at [***] Road, New Lambton filed an application seeking rectification or compensation for alleged breaches of the warranty under s 18B of the Home Building Act.

35. On 14 October 2011 the applicants, as owners signed a contract with the respondent as the builder for the construction of a residence upon a property being Lots 1 and 2, [***] Road, New Lambton. The contract price for the works was $260,815.00 and the owners claimed that they had paid $261,930.00 under the contract. The practical completion handover date was 25 September 2012 and a number of issues relating to rectification and or completion of the works arose after that time.

36. An application (HB13/12810) came before Senior Member Vrabac for a full day mediation on 19 July 2013 and following the mediation which was attended by the applicants in person and by Mr Blackwell on behalf of the respondent, the following orders were made;-

“In full and final settlement of all matters in dispute between the parties,    the respondent will carry out the repairs on or before 30 August 2013.

(1)   articulation joints (item 1 pink slip)

(2)   profile subfloor/vents (item 2 pink slip)

(3)   provide fall to subsoil drain to divest (stet) (divert?) water away (item 3 pink slip).

(4)   items 3c rectify concrete per schedule

(5)   item 5 rectify stacker door per schedule

(6)   the respondent will give one weeks’ notice to the applicant to carry out the repairs.

(7)   the respondent agrees to pay the applicant’s expert reasonable fees 3 spot checks.

(8)   the respondent will pay the applicant the sum of $22,500.00 on or before 30 August 2013 in full and final settlement of all matters in dispute to date.”

37. The application for renewal (HB 13/50125) was filed on 24 September 2013 and the applicants claim that works had not been completed and sought an order for payment of $20,000.00.

38. The matter was initially listed before me on 29 October 2013. It was thereafter listed for directions or return of summons or it was adjourned at the request of one part or the other until it was listed for hearing on 28 October 2014. The matter did not conclude on that date and it was adjourned for further hearing on 30 January 2015.

39. At the conclusion of the evidence both parties were invited to provide written submissions and the time for submissions was extended until the final submissions in reply were received on about 23 May 2015.

37. On 16 July 2014 the matter again came before Senior Member Vrabac on the renewal application. At that time the applicant contended that the work required to rectify the concrete involved demolition and reconstruction whilst the respondent contended that the concrete works could be repaired by grinding. Senior Member Vrabac noted that there was an issue as to whether the agreement made on 19 July 2013 (order 4) mandated demolition and reconstruction or repair as was shown in the applicants report of June 2013 by pink slip. Both parties were initially required to provide affidavits within a total time of six weeks and the matter was then to be referred for the determination of the preliminary issue.

38. The solicitors for the respondent, through Mr Connolly point out that there are three matters to be addressed and to be determined, namely;

1. Whether the present application for renewal was appropriate in the light of any agreements to carry out further work.

2. Whether a new and enforceable agreement arose when the matter was before the Tribunal on 29 October 2013.

3. Whether the orders made on 19 July 2013 mandated demolition and reconstruction or repair.

Issue 1 – is a renewal application appropriate?

42. The respondent submits that Buckle and Buckle v Reynell and Anor NSWCTTT 23 April 2004 and the subsequent decision of Vero Insurance Limited v Buckle dated [2008] NSWSC 73 are authority for the propositions that the execution of a settlement document where the terms clearly indicate an intent to fully and finally settle the matter brings about an end to claims and proceedings before the Tribunal and brings the building contract to an end.

43. Mr Connolly submitted that where parties have executed a settlement document, the true nature of the proceedings after the execution of any such settlement is that they are discontinued or withdrawn and accordingly there cannot be a renewal of those proceedings under s 43 of the Consumer, Trader and Tenancy Tribunal Act. It was submitted that the orders published by the Tribunal on 19 July 2013 brought the building contract to an end and the present proceedings cannot be properly conceived as a renewal of proceedings HB 13/12810. It was submitted that the orders made on 19 July 2013 constituted a new building contract with a defined scope of works and the building contract which came into existence on that date remains on foot and accordingly the present renewal proceedings with a resultant claim for damages in the sum of $52,500.00 cannot be maintained.

44. In response to this claim Mr Jensen of counsel refers to a decision of Buckle and Buckle v Reynell and Anor (supra) and notes that Member Bordon dealt with an application to renew proceedings under s 43 of the CTTT Act regarding a settlement that had been agreed between the parties in August 2003. On that occasion Member Bordon noted that the terms of settlement were signed by parties and the Tribunal simply noted that the matter was settled. Fundamental to his decision Member Bordon noted that to have jurisdiction to renew proceedings under s 43 of the CTTT Act “the first requirement for renewal of proceedings is that there has to be an order made by the Tribunal.” In that case that order had not been made and it was simply noted that the matter had settled upon terms.

45. In Vero Insurance Ltd v Buckle; Reynell v Buckle [2008] NSWSC 73 his Honour Malpass As J detailed the decision in the first Buckle matter and noted that the Tribunal had ruled that s 43 had no application in the circumstances given that no order had been made by the Tribunal. In effect he adopted the decision of Senior Member Bordon in that case.

46. In the present situation Senior Member Vrabac has made specific orders for carrying out of work by the respondent as well as addressing other payments in settlement of issues between the parties. I am satisfied that orders of the Tribunal have been made requiring the respondent to carry out work which was required under its obligations under the building contract. The Tribunal, having made the orders the owners in the first instance are entitled to avail themselves of the benefit of s 43 of the Consumer, Trader and Tenancy Tribunal Act 2001.

47. The Civil and Administrative Tribunal of NSW is empowered to hear and determine order enforcement proceedings and NCAT has and may exercise all the functions that the Consumer, Trader and Tenancy Tribunal had immediately before its abolition. The provisions of any Act, Statutory rule or other law that would have applied to or in respect of the proceedings had the present NCAT Act not been enacted, continue to apply (see Sch 1 Div 3) proceedings concerning abolished existing tribunals, Subdiv 2 determination of pending proceedings s 7. I am accordingly satisfied that the applicants have power to bring the present proceedings as a renewal of orders made by the Tribunal in matter HB 13/12810.

Issue 2 did a new and enforceable agreement arise on 29 October 2013 when the matter was before the Tribunal?

48. In relation to this issue the respondent, through Mr Connolly submits that no enforceable agreement was made on 29 October 2013 by an order made by me on that date or by an agreement between the parties.

49. Although Mr Staniland in his statutory declaration dated 24 February 2014 declared that on 29 October 2013 the Tribunal made the following orders;-

1. the patio and porch concrete slabs are to be demolished and reconstructed to orders of 19 July 2013.

2. both parties agree that the rectification work will not be undertaken by the respondent;

3. the respondent is to pursue the rectification work by an independent, qualified builder acceptable to the applicant with the builder contracting with the applicant.

4. the scope of rectification of any consequential damage.

5. parties are to attempt agreement before 10 December 2013.

His assertion was incorrect.

50. In cross-examination Mr Staniland agreed that those orders had never been made and when one has regard to the transcript of the proceedings on that date it is apparent from the exchange between Member Ringrose and Mr Staniland that the parties were unable to agree as to who was going to do the work or as to what price was to be paid. Mr Blackwell was anxious to take the opportunity to discuss the matter further but he observed further;

“I am just concerned about our ability to agree Member, that’s our problem.”

51. In submissions in reply, Mr Jensen or counsel claimed that there was an enforceable agreement reached on 29 October 2013 at the directions hearing and that the agreement was to demolish and reconstruct the concrete. He agreed that it did not extend further in scope but the terms did not derogate from the existence of the “concrete agreement”. He noted that the applicants had made submissions regarding the concrete agreement to preserve their entitlements to seek relief in a court of appropriate jurisdiction.

52. For present purposes it is not necessary for me to determine whether an agreement had been reached or the nature of it. It is simply appropriate for me to observe that the Tribunal does not have the jurisdiction to enforce any agreement of the type referred to by the applicants in the present case.

Issue 3 – does the order made by the Tribunal on 19 July 2013 mandate demolition and reconstruction of the concrete rather than repair by grinding?

53. The need to interpret an order in the present circumstances arises only where the Tribunal is required to determine whether the terms of any order have been properly complied with. It is in that context and on the basis of the issues referred to me for determination that I must evaluate the available evidence to determine whether a failure to demolish and reconstruct the conflicting works amount to a failure to comply with order 4 made on 19 July 2013.

54. The applicants contend that the order made at mediation on 19 July 2013 was as follows;-

“in full and final settlement of all matters in dispute between the parties, the respondent will carry out the following repairs on or before 30 August 2013”

(1)   articulation joints …

(2)   profile subfloor vents …

(3)   provide for to subsoil drain to divert water away …

(4)   item 3c rectify concrete per schedule being “rectify poor concrete finish and incorrect grates and levels to patio and porch. Demolish and reconstruct.”

(5)   item 5 rectify stacker door per schedule, meaning “stacker door and screen doors – remove damaged doors, repair and install doors, rectify as required to frame, slab, finishes, tiles and paint. Repair may not be possible and a new door required.”

55. It is claimed the Tribunal mediation orders were regularly made pursuant to the statutory powers of the Tribunal and it is pointed out that the order has not been challenged by the respondent by way of any review or otherwise and that the respondent has failed to undertake the works required by the Tribunal orders on or before the prescribed date, namely 30 August 2013.

56. The Tribunal had sought from the respondent a costing for the works and defects claimed by the applicants in the initial proceedings and on 18 July 2013 Mr Blackwell, on behalf of the respondent emailed Mr Staniland a costing sheet.

57. By way of response the applicants prepared a schedule entitled R N & K E Staniland, [***] Road, New Lambton defects and Mr Staniland noted on the email enclosing the defects schedule “attached is our costing information for works we will seek to be included in the orders.”

58. The parties agree that at the commencement of the mediation, Senior Member Vrabac was provided with a copy of the defect schedule prepared by Mr Staniland and the parties progressed through the items in the schedule in a “line by line fashion” (statement of Robert Blackwell, 30 September 2014 par 16.)

59. In cross-examination during the present hearings, Mr Blackwell conceded that he and Mr Staniland had argued and considered the defects of item 3c of the schedule and the need for demolition and replacement due to;

1. Incorrect grades

2. Incorrect levels

3. Poor concrete finish

4. Ponding of water on the patio outside the rear living area.

60. The parties also discussed the possible need for a new stacker door as detailed in item 5 of the defect schedule and Mr Blackwell agreed that the matters referred in item 3c and item 5 were defects.

61. At the conclusion of the mediation process Senior Member Vrabac asked Mr Staniland to write down what it was understood by the senior member, had been agreed between the parties. The document was then read and transcribed and parties were asked to sign that document to indicate that it accurately recorded what had been agreed during the mediation. Both Mr and Mrs Staniland and Mr Robert Blackwell, on behalf of the respondent signed the document and the Tribunal thereafter made orders in accordance with what had been noted.

62. A copy of the orders were typed and forwarded from the Tribunal but no schedule of defects was attached thereto. It would appear that no attempt was made by either party to obtain the document referred to as “the schedule”.

63. It has been submitted on behalf of the respondent that the schedule could be either;

1. a version of the defect schedule held by Mr Staniland on which he made notations or,

2. the version provided to Senior Member Vrabac on which he made notations or,

3. the version held by Mr Blackwell on which he may have made notations although that copy has never been produced and there is no evidence as to whether notations were made on his copy.

64. The respondent submits that, on balance, Senior Member Vrabac was referring to the schedule on which he had made notes and which was part of the Tribunal file. A copy of that document has been produced and it is clear that item 5 relating to the stacker door and screen doors is unaltered, a costing of $3,870.00 is set against the item in the schedule and a notation from the mediator agreed defect appears in his handwriting on the document.

65. In relation to item 3c the notation including the words ‘demolish’ and ‘reconstruct’ remain on the schedule along with a costing of $5,800.00 and the handwritten notation apparently from the mediator agreed defect. There is a further handwritten notation against item 3c which the solicitor for the respondent submits is a reference to the words “agree to grinding” whilst counsel for the applicants submits that the words are “agree to pooling” which would refer to pooling as a result of incorrect grades and levels on the porch.

66. Having reviewed in some detail the notations apparently made by Senior Member Vrabac on his copy of the schedule, it is in my view extremely unlikely that this particular document was destined or intended to be the schedule attached to the orders because it contains notations which appear to be personal notes or reminders for the mediator rather than a record of responses when each item was considered. The document also includes some mathematical calculations which ultimately appear to have given rise to the agreed payment of $22,500.00 although the basis for the calculation is not obvious on the face of the document.

67. It is in my view more likely than not that the document referred to as the schedule in the orders made on 19 July 2013 was simply an unmarked copy of the schedule which was provided by Mr Staniland to Mr Blackwell on 18 July and which was given to Senior Member Vrabac at the commencement of the mediation. There is no evidence that Mr Blackwell had a schedule which was intended to be an attachment and it is not suggested that the document upon which Mr Staniland made notes, was intended for attachment to the orders.

68. The first three work orders make reference to a pink slip building report and it is clear that the only building report in the possession of the parties at the time was a report of Peter Shepherd from Pink Slip Building Reports dated 20 June 2013. That report makes no reference to rectification of concrete or to the rectification of the stacker door but it was clearly intended to provide the basis upon which rectification work in respect of the first three items should be undertaken. I am satisfied that the only schedule available to the parties and to Senior Member Vrabac was the schedule provided by the applicant without additional writing.

69. In the circumstances I am satisfied that when once incorporates the terms of item 3c in the schedule to the terms of the order rectification of the concrete finish to rectify poor finish, incorrect grades and levels to the patio and the porch requires demolition and reconstruction.

70. I am satisfied on the probabilities that any specific issue of grinding to rectify the concrete was raised by Senior Member Vrabac after the terms of the orders had been finalised and as a suggestion of an alternate method of achieving an appropriate result. The issues between the parties should now proceed to determination based on the findings that I have made and it is appropriate in this circumstances that the matter remain part heard before me for that purpose.

71. I have not for the purposes of the present issues made reference to the costing contained in the schedule which was described by Mr Staniland as his costing for items in dispute. The total claim in the schedule was $103,725.00 made up of individual components for each item claimed. Mr Staniland is an engineer and it is likely that he obtained the costings which were associated with each of the items of rectification when he included them in that document. It is noted that these costings were obtained in 2013 but those costings may well become a matter for further consideration when the claim is quantified. In the alternative, parties may wish to further consider methods of resolving the dispute before the matter is called to a final hearing after the next directions hearing.

J A Ringrose

General Member

Civil and Administrative Tribunal of New South Wales

3 August 2015

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: 18 September 2015