Stanwell v Bradley and Simpson
[2014] NSWCATCD 223
•20 November 2014
|
New South Wales |
Case Name: | Stanwell v Bradley & Simpson |
Medium Neutral Citation: | [2014] NSWCATCD 223 |
Hearing Date(s): | 12 March 2014; 15 October 2014 |
Decision Date: | 20 November 2014 |
Jurisdiction: | Consumer and Commercial Division |
Before: | D Moss, General Member |
Decision: | On or before 28 February 2015, Anthony James Bradley and Brian Peter Simpson are to cause the undertaking of the work specified in a Schedule attached to this decision, in a proper and workmanlike manner. |
Catchwords: | Home building; alleged defective and incomplete work. |
Legislation Cited: | Home Building Act (NSW) 1989 |
Category: | Principal judgment |
Parties: | Patricia Stanwell (applicant) |
Representation: | Solicitors: Home Building Advocacy Service for the applicant |
File Number(s): | HB 13/48439 |
Publication Restriction: | Unrestricted |
REASONS FOR DECISION
Application
Ms Stanwell seeks an order for damages in the sum of $30,008.52 plus costs, including the cost of expert reports. The claim arises from a contract for residential building work, a bathroom renovation, at Ms Stanwell’s home in NSW, dated 19 April 2013.
Proceedings in the Tribunal
The proceedings were commenced on 14 September 2013.
The matter was first listed on 21 October 2013. Conciliation was attempted and Ms Stanwell agreed to allow the respondents’ independent expert access to her home to investigate the issues in the bathroom.
A directions hearing was held on 16 December 2013.
The matter was listed for hearing on 12 March 2014. The matter was adjourned, part-heard, to allow an on-site meeting of the experts, facilitated by a member of the Tribunal, (a conclave).
A further directions hearing was held on 28 July 2014.
The hearing took place on 15 October 2014. Ms Lau appeared for Ms Stanwell. Mr Woodward appeared for Mr Bradley and Mr Simpson.
Background
The application concerns residential building work, the subject of a contract dated 19 April 2013. The contract does not comply with the provisions of the Home Building Act (NSW) 1989, (“the Act”). The property to which the contract relates is a dwelling at Georgetown, NSW. The work involved a renovation of the bathroom.
The parties fell into dispute in July 2013 about allegedly incomplete and defective works. A rectification order was made by the Office of Fair Trading Building Inspector on 27 August 2013. On 14 September 2013, Ms Stanwell advised Mr Bradley and Mr Simpson that she had decided to lodge an application with the Consumer, Trader and Tenancy Tribunal to resolve any incomplete and defective building work associated with her bathroom renovation and that, pending the decision of the Tribunal, she would not allow them to do any further work on her bathroom.
Evidence and submissions
Ms Stanwell relied on the following documents and submissions in support of her claim:
(a)A folder of documents filed on 15 January 2014, including points of claim and an expert report from Glen Sim of Awesim Pty Ltd.
(b)An expert report from Peter Davis, Newcastle Building Consultants, dated 18 October 2013.
(c)A Scott Schedule prepared by Glen Sim filed on 25 June 2014.
(d)Written submissions dated 13 October 2014.
(e)Written submissions dated 20 October 2014.
(f)Written submissions dated 29 October 2014.
Ms Stanwell, Mr Sim and Mr Davis gave evidence in support of the making of the orders sought by the applicant.
Mr Bradley and Mr Simpson relied on the following documents and submissions:
(1)A folder of documents filed on 12 February 2014, including an expert report from Craig Hutchinson of Craig’s Building Advisory Services Pty Ltd.
(2)A Scott Schedule completed by Mr Hutchinson and filed on 29 July 2014.
(3)A folder of documents filed on 25 August 2014.
(4)Written submissions dated 21 October 2014.
Mr Bradley and Mr Hutchinson gave evidence on behalf of the respondents.
Jurisdiction
Ms Stanwell’s application is a building claim as defined in s 48(1) of the Act.
The proceedings were commenced in the Consumer, Trader and Tenancy Tribunal, (“the CTTT”), when the Consumer, Trader and Tenancy Tribunal Act (NSW) 2001 and the Consumer, Trader and Tenancy Regulation 2009 were in force. As of 1 January 2014, the Consumer, Trader and Tenancy Act and Regulation were repealed and the CTTT was abolished and replaced by the New South Wales Civil and Administrative Tribunal, (“NCAT”). As the application was not determined prior to 1 January 2014, the proceedings were incomplete.
Transitional provisions in relation to incomplete proceedings are set out in Clause 7 of Schedule 1 of the Civil and Administrative Tribunal Act (NSW) 2013. Pursuant to Clause 7(3), NCAT has and may exercise all the functions that the CTTT had immediately before its abolition and the provisions of the Consumer, Trader and Tenancy Tribunal Act and Regulation continue to apply.
The contract
By a contract made in writing on 19 April 2013, the parties agreed that Mr Bradley and Mr Simpson would carry out a bathroom renovation for Ms Stanwell at her dwelling at Georgetown NSW, for the agreed sum of $19,986.00, to be paid by way of progress claims.
The contract did not comply with Section 7 of the Act in that it did not include the statutory warranties applicable to the work and a conspicuous statement setting out the cooling-off period.
Ms Stanwell did not at any stage have any intention of exercising her cooling-off right, but she was entitled to be informed in writing of the statutory warranties applicable to the work. I do not accept the Respondents’ submission that Ms Stanwell was not prejudiced by the omission of the statutory warranties from the contract.
Mr Bradley and Mr Simpson did not comply with Section 7AA of the Act. They did not give Ms Stanwell information in a form approved by the Director-General of Fair Trading explaining the operation of the Act and the procedure for resolution of disputes.
The contract did not comply with Regulations 12 and 13 of the Home Building Regulation 2004, (“the Regulation”). It did not include the conditions set out in Schedule 2 of the Regulation, concerning plans and specifications and quality of construction. It did not include a checklist in the form set out in Schedule 3.
Compliance with the provisions of the Act and the Regulation in relation to contracts for residential building work protects both the home owner and the builder. It provides a clear framework for the carrying out of the building work, where each party is given the required information about their respective rights and responsibilities and the procedure to follow in the event of a dispute.
In my view, the respondents’ failure to comply with the Act and the Regulation in relation to the contract contributed to Ms Stanwell’s eventual loss of faith in them and resulted in the escalation of the dispute between the parties.
The expert evidence
Ms Stanwell relied on expert evidence from Glen Sim of Awesim Pty Ltd and Peter Davis of Newcastle Building Consultants.
Mr Bradley and Mr Simpson raised the following issues in relation to Mr Davis’ evidence:
Mr Davis did not attach a copy of his letter of instructions or copies of the e-mails from Ms Stanwell.
There is no document in evidence which contains a revision date of 12 April 2013 (refer paragraph 5.3 of Mr Davis’ report).
Mr Davis opinion, expressed in paragraph 9 of his report, is a “global” opinion, couched in the briefest of terms. He does not give a reason for each opinion expressed in his report.
Mr Davis does not state which works are incomplete and which have not been completed in a proper and workmanlike manner.
Mr Davis does not state which performance requirements of the Building Code of Australia have not been met in respect of each claimed item of defective or incomplete work.
Mr Davis does not identify the relevant “referenced Australian Standards”.
Mr Bradley and Mr Simpson raised the following issues in relation to Mr Sim’s evidence:
Mr Sim did not mention the assumptions he acted on in undertaking his investigations.
Many of Mr Sim’s assumptions were proved to be incorrect. For example, that the gouge in the bath-tub was caused during installation.
Mr Sim did not consider the Tiling Code AS3958.1 (2007), which is the relevant standard for the installation of ceramic tiles.
In giving his evidence, Mr Sim was defensive, uncompromising and unable to make even minor concessions.
Ms Stanwell raised the following issues in relation to Mr Hutchinson’s evidence:
Mr Hutchinson attempted to discredit the reports of the applicant’s expert witnesses, rather than draw conclusions based upon his own independent observations.
Mr Hutchinson located himself at the bar table next to the respondents’ legal representative.
Mr Hutchinson was not impartial and acted as an advocate for the respondents.
Mr Hutchinson did not attach a copy his resume to the report supplied to the applicant.
Mr Hutchinson did not include reasons for each opinion expressed in his report.
NCAT Procedural Direction 3 sets out a code of conduct for expert witnesses and information on how experts may be required to give evidence. It is substantially the same as the CTTT’s Chairperson’s Code of Conduct for Expert Witnesses. Although adherence to the code of conduct is imperative, the Tribunal may excuse an expert witness from complying with Procedural Direction 3.
Mr Davis has 32 years’ experience in the building industry. He has a Certificate IV in Building Studies, Residential (Clerk of Works). He has been undertaking building inspection reports since 1997.
Mr Sim has 23 years’ experience in the building industry. He is an accredited building consultant.
Mr Hutchinson has 48 years’ experience in the building industry. He has a Builder’s Certificate, incorporating a Clerk of Works and Local Government Building Inspector’s Certificate. He has worked as a building consultant since 1983.
In relation to Mr Davis’ report, I am satisfied that attaching a copy of the letter of instructions and a copy of the e-mails from Ms Stanwell would have been helpful. More significantly, the Tribunal would have been assisted if Mr Davis had identified the relevant performance requirements of the Building Code of Australia and the referenced Australian Standards in relation to each item of work that he opined was not performed in a proper and workmanlike manner.
In relation to Mr Sim’s evidence, on the whole I did not find Mr Sim to be “defensive, uncompromising and unable to make even minor concessions.” I found that he was a truthful witness who was doing his best to assist the Tribunal. However, I accept the submission that Mr Sim had no factual basis to assume that the gouge in the bath-tub occurred during installation. I reject that part of his evidence.
In relation to Mr Hutchinson’s report, a copy of Mr Hutchinson’s curriculum vitae was filed with the Tribunal on 12 February 2014. I am not satisfied that the delay in providing a copy to Ms Stanwell caused prejudice. I accept the submission that it would have been preferable if Mr Hutchinson outlined his own independent observations and conclusions concerning each of the alleged defects in his report, rather than seeking to discredit the findings of Mr Davis and Mr Sim.
Although Mr Hutchinson sat at the bar table during the hearing, the Tribunal is bound to act with as little informality as possible and I do not find this to be a demonstration of Mr Hutchinson’s partisanship. Although Mr Hutchinson may have at times appeared to be acting as an advocate for the respondents, overall I accept him as an independent expert witness.
Although there were problems with the evidence given by each of the three expert witnesses, I accept that they were all qualified to articulate the opinions they expressed and that they each attempted to assist the Tribunal impartially on relevant matters. I accept all three experts as truthful witnesses.
Alleged incomplete and defective work
Section 18B of the Home Building Act 1989 sets out the warranties that are implied in every contract to do residential building work, including a warranty that the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract.
Ms Stanwell alleges that her bathroom renovation is incomplete and there are a number of items that were not done in a proper and workmanlike manner. I will address each of these matters individually.
Ceiling
The parties agree that the plaster setting to the plasterboard joint in the ceiling is noticeable and has a gouge. The parties agree that this is a defect that requires rectification.
Floor tiling in shower
The parties agree that water ponds on the shower floor. The parties agree that this is a defect that requires rectification.
Waterproofing
The waterproofing of the bathroom was performed by a sub-contractor, Danny Murison from Danny’s Waterproofing and Property Maintenance. Mr Murison and his employees performed work on Ms Stanwell’s bathroom on 24 April 2013. Ms Stanwell took photographs of the work on 25 April 2014.
On 26 April 2013, the waterproofing contractors returned to complete their work and they asked Ms Stanwell if they could borrow a fan from her, as the first coat was not quite dry. After using the fan and a high-powered light for a couple of hours, the second waterproofing coat was applied.
Ms Stanwell noticed that the waterproofing material was only being applied to the shower area and the floor around the bath. She telephoned Mr Bradley and raised her concerns.
Mr Murison provided an Installation Certificate stating that the waterproofing of Ms Stanwell’s bathroom was completed on 26 April 2013. He gave a seven year warranty against membrane failure.
On 29 April 2013, Ms Stanwell saw Mr Bradley’s and Mr Simpson’s employee, Sam, using an angle grinder in the shower. He appeared to be cutting into the waterproofing membrane. Ms Stanwell asked Sam what he was doing. Sam said shat he was fixing the shower recess. He also said that he would be re-waterproofing the shower recess and it would not affect the certificate of compliance for the waterproofing.
After Sam completed his work for the day, Ms Stanwell noticed that a grey material had been applied over the blue waterproofing membrane previously installed by Mr Murison.
Ms Stanwell supplied Mr Sim with the photographs of the waterproofing membrane that she took on 25 April 2013. The photographs show that the waterproofing membrane behind the wall insert above the bath was applied directly to the external cladding of the dwelling.
In Mr Sim’s opinion, this is a defect. The photographs also show that the shower recess does not have a water-stop angle installed. In Mr Sim’s opinion, this also is a defect.
Mr Davis also looked at the photographs of the waterproofing membrane taken by Ms Stanwell. He stated that the wall recess waterproofing membrane appears to have been applied to the rear surface of the dwelling’s timber weatherboard external cladding. In his opinion, the waterproofing membrane has not been installed in a proper and workmanlike manner.
Mr Hutchinson stated in his report that:
“As previously stated the evidence relied on by Mr Sim are photographs of work in progress with the photographs understood to have been taken by the applicant. Mr Sim says the photographs “indicate” the membraining (sic) is defective but has failed to prove his claim. There is no evidence of failure of the membrane.”
Mr Bradley and Mr Simpson also relied upon the Installation Certificate from Danny Murison of Danny’s Waterproofing and Property Maintenance. The certificate states that all waterproofing was carried out to Australian Standard AS3740 and carries a seven year warranty against membrane failure.
A Rectification Order was made by the Office of Fair Trading requiring the contractor to rectify the waterproof membrane installation to the two off-wall recesses by 27 September 2013. The inspector from the Office of Fair Trading considered the waterproofing of the two recesses to be defective work.
Ms Stanwell’s evidence that Sam, an employee of Mr Bradley and Mr Simpson, used an angle grinder in the shower recess on 29 April 2013 causes me grave concern.
Ms Stanwell stated that Sam appeared to cut into the waterproofing membrane and subsequently applied a grey material over the blue waterproofing material previously installed by Mr Murison. This evidence was not contradicted by any evidence from Sam, Mr Bradley or Mr Simpson. On the evidence given, I am satisfied on the balance of probabilities that, on 29 April 2013, Sam, an employee of the respondents, voided the waterproofing warranty given by Mr Murison.
Further, by installing the waterproofing membrane directly onto the exterior weatherboards of the dwelling, I find that Mr Murison did not perform the waterproofing of the bathroom in a proper and workmanlike manner.
Mr Sim is of the opinion that the waterproofing membrane in the bathroom should be “monolithic”, (i.e. done in a single job). Mr Hutchinson is of the opinion that the shower recess waterproofing membrane can be reinstated, without damaging the existing waterproofing of the walls. He states that any repairs required to be done to the waterproofing membrane can be effectively done by patching with the same material.
I have carefully considered all of the evidence and the submissions. I am satisfied on the balance of probabilities that, because the waterproofing product was applied to the external weatherboards of the dwelling behind the recess above the bath, the waterproofing was not done in a proper and workmanlike manner. Further, the waterproofing was subsequently seriously comprised by the use of an angle-grinder in the shower recess and the application of another product by a person who was not working under the supervision or control of Mr Murison.
I am satisfied that the significant defects with the waterproofing cannot be rectified by re-installation in the shower recess area and patching. I am satisfied on the balance of probabilities that the waterproofing needs to be redone.
Walls
Mr Sim reported that the bathroom walls were not plumb by up to 14mm per metre. In his opinion, this is a defect. Mr Sim referred to the Guide to Standards & Tolerances 2007 that states, “Wall surfaces are defective if they deviate from vertical by more than 4mm within any 2m height.” Mr Sim also observed plaster patches in multiple locations on multiple walls and colour variation in the paint to the walls.
Mr Davis reported that the interior walls of the bathroom are not plumb and true. During re-examination Mr Davis said that a builder should ensure that the walls are plumb because it makes “professional sense”, is “common practice” and “should be done”.
Mr Hutchinson reported that the builder’s quotation made no allowance for correcting deformations within the original structure. “The timber framed property exhibits varying degrees of sinking and associated distortion, the rectification of which is outside the builder’s Scope of Works identified in his quotation No 2013/0002, dated 3rd April 2013.”
If the walls not being plumb was the only defect in the bathroom, I would not be satisfied on the balance of probabilities that a rectification order or money order should be made against Mr Bradley and Mr Simpson. As Mr Sim stated, it is not unusual for an old house to have walls that are not exactly straight and Mr Bradley and Mr Simpson were not contracted to straighten the walls. However, as I am satisfied that the waterproofing needs to be redone, I propose to make orders about the walls in due course. I accept Mr Davis’ evidence that the walls should be plumb, as a matter of “professional sense”.
Wall Tiling
Mr Sim reported that the bath-hob tiling has exposed edges. He is of the opinion that this method of installing wall tiles “is not in a tradesman like manner”.
The walls have two inserts, one above the bath and the other in the shower. The edges of the external ends of the inserts are also exposed. The bases to these inserts do not have fall and water ponds within them. In Mr Sim’s opinion “this is a defect.” Mr Sim also observed water ponding on the front of the bath-hob and between the bath and the shower screen. He reported that, “in my opinion this is a defect”.
Mr Davis reported that “ceramic wall tiles have not been finished in a workmanlike manner. Tile edges are raised and groutwork is incomplete. Waterproofing compound is visible throughout the external wall tiling Gapping is evident between the upper edge of the ceramic wall tiles and the wall lining material. Bath hob and external wall recess ceramic tile edges are visible. External corners have not been finished in a proper and workmanlike manner. Water ponds throughout the surface of the Bath hob tiles. Water ponds within the Bathroom wall recesses.
Mr Hutchinson is of the opinion that the lack of surface gradient in the wall recesses is not a defect, as the presence of a surface gradient would prevent the storage of tall items. Mr Hutchinson agrees that the bath tiling has exposed edges. He states that Ms Stanwell was to supply the tiler with specialised chrome corner trim to cover up the exposed edges. Ms Stanwell purchased the trim from Earp Bros on 22 April 2013. She returned it to Earp Bros on 29 April 2013.
Mr Bradley and Mr Simpson provided an e-mail sent on 5 September 2013 from the tiler, Mark Davidson, in the following terms:
“As per our discussion concerning the tiling at Christo Rd, all tiling was done as per the owners request. The owner, yourself and me spoke in detail what was required and was carried out to her instructions. Regarding the edging of the tiles it was all agreed on that an aluminium tile trim would highlight the edging rather than blend in and therefore take away the affect of the high quality wall tile plus the cost of the tile trim was very expensive. It was then agreed on to go with a square edge finish which what I did.
The owner observed all through the laying of the tiles, before and after grouting and was extremely happy with the appearance and finish of the tiles and agreed that the tile trim would not have suited.”
Mr Davidson did not give evidence at the hearing.
Mr Bradley and Mr Simpson also provided a statement from Steve Young who attended Ms Stanwell’s home after the bathroom was renovated. Mr Young stated that Ms Stanwell “seemed excited and happy about the end result.” Mr Young mentioned that the edging around the insert above the bath would look better with a beading-type edge. Ms Stanwell “made it clear she was quite happy with the end result.”
Ms Stanwell provided a statement in the following terms:
“The tiler said he would be able to cut the tiles to fit into the recesses and if I was worried about the finish I could consider using a decorative tile trim which might also improve the look of the wall tile setback areas.
I went to Earp Bros tiles later that day and ordered the Carrara Blanco slim marble look tiles and purchased a decorative chrome trim which was recommended by the Earp Bros sales assistant. When discussing the use of a tile trim with my wall tile, the sales assistant suggested using a mitred finish on the tile edges as this is also an option worth considering.
I decided to purchase the tile trim and on the next day I provided the tile trim sample to the builders and I discussed its use with Tony. I said I don’t really think it will look good around the two recesses as it may make these areas look more pronounced.
I then suggested the option of mitring the tile edge as suggested by the sales assistant at Earp Bros and Tony Bradley said he would tell the tiler to produce a smooth edge around the two recessed areas. I then said to Tony that I would like the tiler to produce a smooth edge finish also around the bath and shower. Tony said he would get the tiler to do this. The tiler was not present at this meeting.
I then said to Tony that as the wall tiles were expensive, I wanted them to look good and be a feature of the bathroom. Tony assured me that would be the case and that if Mark couldn’t do this he would get back to me after speaking with Mark.”
The relevant parts of the contract dated 12 April 2013 provide:
“Install owner’s landscape feature recess into wall adjacent to new bath.
Labour to fix wall tiles to bathroom area up to 2100mm high as per owners request Approx 15.0m2 (Excludes areas of shiplap wall lining boards).”
The contract also provided that “Any Variations after the Agreed contract price Will Be Done by Written Variation and Signed by Builder and Owner before Commencement of Variation.” No variations were signed.
I am satisfied on the balance of probabilities that that tiles around the bath hob, the insert above the bath and the insert in the shower have exposed edges. Mr Sim is of the opinion that the installation of the wall tiles has not been done in a proper and workmanlike manner. Mr Davis is of the opinion that the external corners of the wall tiles have not been finished in a proper and workmanlike manner. Mr Sim and Mr Davis have not supported their opinions by reference to the Building Code of Australia.
Mr Hutchinson is of the opinion that Ms Stanwell “agreed to go with square edge tiles”.
The building inspector from the Office of Fair Trading was unable to determine whether or not the exposed-edge tile finish complied with the verbal agreement between Ms Stanwell and Mr Bradley.
I am not satisfied on the balance of probabilities that Ms Stanwell instructed Mr Bradley, Mr Simpson or the tiler, Mark Davidson, that the wall tiles should be laid with exposed edges. Ms Stanwell certainly did not sign a written variation to this effect.
Both Mr Sim and Mr Davis are of the opinion that the lack of fall in the inserts above the bath and in the shower is a defect. Again, they do not support this opinion by reference to the Building Code of Australia. Mr Hutchinson is of the opinion that the lack of fall is not a defect.
As the tiles have to be removed to facilitate the re-waterproofing of the bathroom, I will make orders about re-tiling in due course.
Shower screen
Mr Sim reported that when the glass shower door is opened inward, it hits the shower rose. In Mr Sim’s opinion, this is a defect. When the shower door is closed, water escapes between the vertical gap between door and the fixed glass panel adjacent to the door hinge. Mr Sim considers this to be a defect.
Mr Davis reported that the southern fixed section of the glass shower screen is askew. The hinged glass shower screen door is plumb and does not match the vertical edge of the southern fixed section of the glass shower screen when in the closed position. The hinged glass shower screen door strikes the shower head when the door is opened into the shower recess
Mr Hutchinson reported that the glass shower screen is fit for purpose and sized in accordance with the builder’s quotation. Ms Stanwell supplied the shower rose. Mr Hutchinson is of the opinion that Ms Stanwell could have purchased a different profile shower rose water pipe, in an “S” profile, so as to elevate the shower rose above the top of the hinged glass door. This would prevent contact between the glass door and the shower rose. In the alternative, the shower hinged glass door could only be opened outward.
Ms Stanwell was cross-examined about solving the problem by installing a different shower rose. She replied, “why buy something I couldn’t use?” I formed the impression that the use of the existing shower rose is important to Ms Stanwell.
The Rectification Order made by the Office of Fair Trading required the contractor to rectify the shower screen door from striking the shower rose. In the inspector’s opinion this item was defective.
I am satisfied on the balance of probabilities that the shower screen fixed panel and the shower screen door have not been installed in a proper and workman-like manner and require rectification.
Bath
Mr Sim reported that the bath has impact damage with a deep gouge – a result of poor installation. Mr Sim had no factual basis for asserting that the damage was the result of poor installation. As previously mentioned, I reject his evidence in this regard.
Mr Davis reported that the acrylic bath insert is surface marked and impact damaged.
Mr Hutchinson reported that the bath has a small scratch in the acrylic surface. The scratch is barely visible and is located adjacent to the recessed tiled wall pocket. Mr Hutchinson is of the opinion that the damage is consistent with a heavy sharp object, ornament or similar having fallen from the tiled pocket into the bath.
Mr Hutchinson also stated that “the builder has stated that the bath was in perfect condition at the completion of the works.”
Ms Stanwell gave evidence that when Mark the tiler was fixing wall tiles over the bath, she heard a loud crashing noise coming from the bathroom. When Mark left for the day, Ms Stanwell noticed a chip in the bath. Ms Stanwell said that she telephoned Mr Bradley and left a message that she wanted to talk to him about the bathroom tiling.
Ms Stanwell said she spoke to Mr Bradley by telephone the next day and told him about the chip in the bath. In cross-examination it was put to Ms Stanwell that she did not speak to Mr Bradley about the chip in the bath. She said, “I believe I did”. It was further put that there was nothing in her e-mail of 8 July 2014 about the chip in the bath. It was also put that Ms Stanwell did not raise the issue when the problem arose. She replied, “I believe I did. I was upset.”
Ms Stanwell’s son did not provide a statement and did not give evidence about this matter.
Mr Bradley gave evidence on 12 March 2014. He said that the scratch in the bath was “not resolved”.
The tiler started work on 1 May 2013. The loud crashing noise was allegedly heard on 2 May 2013. Ms Stanwell subsequently gave one of Mr Bradley’s and Mr Simpson’s employees, Sam, a list of items that she was not happy about. The list included the tiling edge, poor plaster finish, unfinished paintwork, the loose toilet-roll holder, the heated towel rail, the shower screed installation, and missing Allen keys for the Reece bathroom products. There was no mention of the chip in the bath-tub.
On 8 July 2014 Ms Stanwell sent Mr Bradley and Mr Simpson an e-mail seeking clarification about when they intended to resolve the defective work in her bathroom.
The e-mail raised the following issues:
address tiling edge finish to be consistent with our agreement, that being a straight level finish with no bare edging on the tiles.
repair plaster and paintwork next to vanity to provide a smooth painted finish.
fit toilet roll holder tightly to wall and fix previous holes to provide a smooth painted finish.
resolve water leaks from shower screen installation.
provide allen keys to all reece products which I purchased and you installed.
Taking into account all of the evidence, I do not know how the bath came to be damaged. Ms Stanwell impressed me as a careful, meticulous person. The fact that she left the gouge or scratch in the bath out of the list of complaints that she gave to Sam and her e-mail of 8 July 2014 is one of the factors that leads me to find that she has not discharged the burden of proof in relation to the cause of the damage to the bath.
Decision
Ms Stanwell seeks an order in the sum of $30,008.52, being compensation to rectify the allegedly defective building work. Ms Stanwell also seeks costs of obtaining the expert reports and for the attendance of the expert witnesses at the conclave and at the hearing.
Mr Bradley and Mr Simpson submit that Ms Stanwell has only established an entitlement to recover $1,200.00 to rectify the floor in the shower recess and $340.00 to repair the ceiling. Allowing for preliminaries, overheads and profit, the Tribunal should award her $1,896.84. This amount should be offset against the last progress payment of $1,998.60, which has not been paid.
For the reasons outlined above, I am satisfied on the balance of probabilities that the waterproofing of the bathroom needs to be redone.
This means, in effect, the whole bathroom will need to be redone.
I am of the view that Mr Bradley and Mr Simpson should be allowed an opportunity to undertake the work required and I propose to make a work order in this matter.
Costs
In accordance with Section 53 of the Consumer, Trader and Tenancy Tribunal Act (NSW) 2001, subject to Section 53 and the regulations, the parties are to pay their own costs.
In accordance with Regulation 20 of the Consumer, Trader and Tenancy Regulation (NSW) 2002, in any proceedings in respect of which the amount claimed or in dispute is more than $25,000.00, the Tribunal may award costs in relation to the proceedings in such circumstances as it thinks fit.
I consider that it is appropriate in all the circumstances to make an order that Mr Bradley and Mr Simpson pay Ms Stanwell $1,980.00, being the cost of the expert report from Awesim Pty Ltd.
There is no application before me in relation to money alleged to be owed to Mr Bradley and Simpson under the contract. It is not appropriate to make an order in relation to that issue.
D Moss
General Member
Civil and Administrative Tribunal of New South Wales
20 November 2014
In the matter of STANWELL v BRADLEY & SIMPSON HB 13/48439
SCHEDULE OF WORK TO BE PERFORMED
Address: ******** GEORGETOWN
The bath, vanity, toilet cistern, tap-ware, shower rose, toilet-roll holder and floor wastes are to be removed and stored for later use.
The shower screen is to be removed.
The floor tiles are to be removed and disposed of.
The wall tiles and wall linings are to be removed and disposed of.
New wall linings are to be installed. The new wall linings are to be plumb. If necessary, packers or battens are to be installed.
A new plaster setting is to be applied to the ceiling to flatten the joint.
Water-proofing is to be installed to the floors and walls. The water-proofing is to be performed by a properly qualified and appropriately licensed tradesperson, other than Danny Murison.
The bath is to be re-installed. If Ms Stanwell wants a new bath to be installed, it is to be at her cost.
New floor and wall tiles, matching the existing tiles, are to be laid, by a properly qualified and appropriately licensed tradesperson, other than Mark Davidson. The tiles are to be laid with a smooth-edge finish.
The floor wastes are to be re-installed.
The fall of the tiles to the floor waste channel in the shower recess is to comply with AS 3958.1-2007. The fall is to be sufficient so that water does not pond on the shower floor.
Tile feature recesses are to be installed in the wall above the bath and in the shower. The recesses are to be lined with new villa-board. There should be sufficient fall in the floor of each recess to ensure that water does not pond.
The vanity is to be re-installed.
The tap-ware and shower rose are to be re-installed.
The shower screen is to be re-installed. The shower screen is to be installed so that it only opens outward.
The heated towel rail is to be installed by a properly qualified and appropriately licensed electrician.
A new toilet pan and the existing toilet cistern are to be installed.
The walls and ceiling are to be painted.
The toilet roll holder is to be securely re-installed.
All waste is to be removed from site and the bathroom left clean.
If any items are damaged during removal, storage or installation, they are to be replaced with new products.
NOTATIONS
All work is to be performed in a proper and workmanlike manner.
All work is to be performed by properly qualified and appropriately licensed tradespersons.
Ms Stanwell is not to obstruct Mr Bradley and Mr Simpson in the carrying out of these orders.
Ms Stanwell is to provide reasonable access to 50 Christo Road Georgetown to Mr Bradley and Mr Simpson, their sub-contractors and employees, for the purpose of the carrying out of these orders.
If Mr Bradley and Mr Simpson do not comply with the work order, Ms Stanwell may request the renewal of the application by filing the prescribed form by 10 November 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
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