Thillainathan v Tabora Constructions Pty Ltd and Anor (Civil Dispute) - [2016] ACAT 40

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THILLAINATHAN v TABORA CONSTRUCTIONS PTY LTD and ANOR (Civil Dispute) [2016] ACAT 40

XD 7/2015
Catchwords: CIVIL DISPUTE – building and renovation work – question about scope of agreement – whether work agreed was completed – standard of work completed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 6, 7
Australian Consumer Law ss 18, 236, 60, 62, 267

Tribunal: Senior Member W Corby

Date of Orders:  13 May 2016
Date of Reasons for Decision:         13 May 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL           XD 7/2015

BETWEEN:
KANTHARAJAH THILLAINATHAN
Applicant

AND:
TABORA CONSTRUCTIONS PTY LTD AND
FREDRICK MBOGO
Respondent

TRIBUNAL: Senior Member W Corby

DATE: 13 May 2016

ORDER

The applicant is to pay the respondent $3,100 calculated as follows:
(a)$3,190 (inclusive GST) for roof work;
(b)$1,500 (inclusive GST) for electrical work;
(c)$2,250 (inclusive GST) for plumbing work;
(d)$660 (inclusive GST) for carpentry work;
(e)$2,400 (inclusive GST) for painting work;
(f)Less payment already made by the applicant of $6,900.
The respondent is to pay the applicant compensation of $3,667.09 to complete the agreed contract work:
(a)$2,610.08 (inclusive GST) electrical work;
(b)$657.01 (inclusive GST) plumbing work;
(c)$400 painting work.
The respondent is to pay $567.09 to the applicant by close of business 3 June 2016 in final satisfaction of these orders.
……………………………..

General President L Crebbin
for and on behalf of the Tribunal

REASONS FOR DECISION

Kantharajah Thillainathan (the ‘applicant’) made an agreement, or agreements, with Tabora Constructions Pty Ltd (the ‘Company’) and Fedrick Mbogo, a representative of the Company (the ‘respondent/s’), that the respondent and/or the Company would undertake certain renovation and repair work at the applicant’s property in O’Connor, ACT (the ‘property’). On the property there was a main residence (the ‘house’) and a flat attached to the garage at the property (the ‘granny flat’).
There was no detailed written agreement and the parties provided very different versions about what was agreed and what had occurred.
The applicant says that the respondent either did not undertake, or did not adequately perform, some or all of the work as agreed. The applicant applied to the ACT Civil and Administrative Tribunal (ACAT) for orders that:
(a)the respondent and the Company have failed to carry out the work as agreed and the applicant should be repaid $7,320 that he paid to the respondents in relation to the agreement; and/or
(b)he is not liable to pay the respondent the balance of the agreed contract price; and/or
(c)that the respondent repay the applicant amounts to reflect the difference between the amount paid by the applicant and the value of the work that was undertaken by the respondent or the Company; and/or
(d)the respondent pay to the applicant compensation for the anticipated cost or the costs incurred by the applicant to complete or rectify work that was not completed or inadequately performed by the respondent.
The respondents deny that the respondent, or the Company, failed to adequately perform or complete the work as agreed and counter-claim for the outstanding amount payable by the applicant in relation to the agreement/s between the parties, the cost of additional work done and materials provided by the respondents at the property.
The primary issues to be determined are:
(a)What did the parties agree?
(b)What work was carried out by the respondent?
(c)Did the respondent perform and complete the work as agreed?
(d)Has the applicant paid for the work?
(e)Is the applicant entitled to compensation for costs incurred or for the anticipated costs to rectify work inadequately performed or to complete work not undertaken by the respondents?
(f)Is the applicant liable to pay the respondents any amount?
In these reasons for decision, when referring to the Tribunal Member who conducted the ACAT hearing, the term ‘Tribunal’ will be used.
The Hearing
The hearing was conducted over five days. The applicant was represented by a solicitor, Ms Baker, and the respondent by a solicitor, Mr Pasipanody, at the directions hearing held on 4 May 2015 and on the first two days of hearing on 17 and 26 June 2015. Before the start of the third day, on 14 September 2015, each solicitor filed a notice saying that they were no longer acting. For the final three days of hearing the applicant was self represented. Mr Mbogo was self represented and also appeared as authorised representative for the Company.
Whilst the Tribunal is mindful of its obligations under sections 6 and 7 of the ACT Civil and Administrative Act 2008 (the ‘ACAT Act’) to ensure that matters are conducted in as informal and efficient a way as possible, equally the process must be fair and just. The Tribunal endeavoured to give some guidance to the parties, and their representatives before they each withdrew, about what they could do to help achieve this aim. In the Tribunal’s view, in the absence of a detailed written agreement between the parties and given the nature of the evidence relied on and the many issues in dispute, the matter was conducted as quickly as the circumstances allowed.
At the conclusion of the hearing on 10 December 2015 the Tribunal reserved its decision.

Information relied on by the Tribunal in considering this matter

The Tribunal relied on documents and written and oral submissions filed before and during the hearing.
Each party called witnesses who gave evidence, in person or by telephone. The witnesses, some of whom provided written statements, were asked questions by the parties and the Tribunal.

The agreement/s between the parties

Some time before 11 October 2014 the applicant and his wife purchased the property. Contracts had exchanged but settlement had not occurred as at 11 October 2014. No one had resided at the property for several years and it was in poor condition. Work needed to be done on the house and the granny flat. Dhammith Abeysuriya knew both the applicant and the respondent. Mr Abeysuriya recommended that the applicant contact the respondent about the renovation/repair work.
On or about 11 October 2014 the applicant and the respondent spoke for the first time. They arranged to meet at the property to discuss the work that the applicant wanted done. Because settlement had not occurred, the selling real estate agent had to attend with the parties on 11 October2014 so that they could access the property. The applicant did not yet have a key.
The applicant gave evidence that at the 11 October 2014 meeting at the property the applicant advised the respondent that he required the following work to be done:
(a)Electrical work – this was to include:
i.        the necessary certification for connection of power to the house and granny flat, which were separately metered;
ii.      repair or, if needed, replacement of all ‘electrics’ such as lights, switches and power-points in the house;
iii.     installation of six downlights – four in the living area and two in the hall of the house;
iv.      in the granny flat, the necessary work for the connection of power and the installation of a ‘Tastic’ to replace the light in the granny flat bathroom.
(b)Identify and repair a roof leak –there was evidence of water damage to the ceiling in some areas of the house which suggested a roof leak.
(c)Plumbing work which included:
i.        repair of the toilet in the house that was not working. The applicant said that the cistern needed to be repaired or replaced;
ii.      the granny flat toilet had a leak and needed repair – the applicant asserts that this was then replaced, rather than repaired, by the respondent without the applicant’s consent;
iii.     there was no oven or cooktop in the house. There was a gas line and gas point for a cooker. The applicant, although he is not qualified to do so, had checked this gas line and determined that gas was connected to the house. The applicant wanted to have a gas stove installed.
The applicant also asked about having electricity connected to the garage at the property but was advised by the respondent that this would be expensive. It was not work that was included in the subsequent agreement.
After 11 October 2014 with the applicant’s permission, the respondent obtained a key to the property so that he could attend with several tradespeople who were then to provide quotes to the respondent in relation to undertaking the work. It seems that the applicant was not present when these visits by prospective tradespeople were made.
On 16 October 2014 the respondent sent an email to the applicant enclosing a quote, on behalf of the Company, for work at the property (the ‘16 October 2014 quote’).[1] The quote included, relevantly:
(a)Roof work including materials (sealing compounds, 15 new ridge tiles, 10 tiles, sealing and colour cpd, trestle) and labour ‘to repair roof’ ($4,125). The respondent recommended a building inspection report be undertaken (additional $1,800).
(b)Electrical ‘works and checks’ including new circuit breaker, wiring, certification - $3,630.
(c)Plumbing ‘checks and install’ including hood accessories ($600), certification - $3,496.
(d)Painting materials and labour – 100m2 for main house $3,500 and 35m2 for granny flat $1,225.
(e)Project management fee - $1,753.50.
[1] Exhibit A1
The 16 October 2014 quote[2] also dealt with and provided quotes for the following:
(a)Work on the granny flat wooden floors, deck and paving.
(b)Work on the wooden and tiled floors in the house.
(c)Supply ($1,500) and installation ($1,500) of a stove in the house.
(d)Landscaping.
(e)Work on the shed.
(f)Final cleaning - $2,500.
(g)Reframing of pantry door.
[2] Exhibit A1
The total cost of the 16 October 2014 quote was $36,823.50. In the covering email enclosing the quote the respondent noted that:
For the gas is not considered until we sort out the stove type
After receiving the 16 October 2014 quote the applicant and his wife, Srikavitha Kantharajah, attended at the respondent’s home on 17 October 2014 to discuss it. The applicant’s wife was pregnant and the baby was due in about December 2014. The applicant and his wife advised the respondent that they wanted to move into the property as soon as possible and before the baby was born, but could not afford to proceed with all of the quoted work in the 16 October 2014 quote. They said they wanted to focus on work that was necessary to enable them to move into the property as soon and as cheaply as possible. The applicant and his wife advised the respondent that they would therefore restrict the work to be undertaken to the roof, plumbing and electrical work. It was clear from the outset that the focus for the applicant and his wife were:
(a)Timing of completion of the work.
(b)Cost.
(c)Bringing the premises up to a livable condition so that they could move in.
At the 17 October 2014 meeting the applicant said that the respondent agreed, in addition to the matters discussed previously:
(a)to install an additional two downlights in the dining area of the main house, so that the total number of downlights was then to be eight. The applicant said that when he met with the respondent at the house on 11 October 2014 the respondent had suggested that four downlights be installed in the lounge area and two in the hallway of the house to replace the existing lighting. The applicant had understood that this was to be included in the quoted work. The applicant said that on 17 October 2014 the respondent agreed that the cost of installation of eight downlights in the lounge, hall and dining area of the house would be included in the price of $3,630 for the electrical work set out in the 16 October 2014 quote;
(b)that the applicant would supply a gas stove and the respondent’s plumber would install it;
(c)the respondent agreed to install three ‘mixer’ taps in the main house to the bath and sink in the bathroom and the kitchen sink;
(d)that the respondent’s plumber was to identify and repair any leaks in the plumbing of the house. There was mould and evidence of water damage to the walls in the bathroom/laundry area of the house which suggested there was a plumbing leak.
The applicant and the respondent had some further conversations after 17 October 2014. At the applicant’s request the respondent sent an email dated 28 October 2014[3] to the applicant enclosing an ‘invoice’[4] from the Company for $2,000. This was described as a “work deposit” for “electrical work and plumbing as per Quote no.16102014.” In the ‘invoice’ this was described as being for “services provided for work to start 1 November 2014.” It is clear, from the subsequent email exchange (see below) between the parties that although this document is referred to as an invoice, the parties had not at that point reached an agreement on what was to be included or the price to be paid.
[3] Exhibit A2
[4] Exhibit A18
The applicant responded by email dated 28 October 2014.[5] In summary:
(a)The applicant asks if the total quoted cost of about $10,000 for roofing, electrical and plumbing work would be cheaper if the applicant paid cash. The respondent replied that getting this price for three trades was a “miracle”.
(b)The applicant makes clear that, apart from the necessary electrical certification, he does not need “formal papers”. The respondent cautions that whilst he understands the applicant’s desire to save costs, the fact that the property had been unoccupied for more than two years should also be a consideration when the applicant is deciding how work is to be done.
(c)The respondent also advises the applicant that he should get the house painted and address the smell of mould “which is not good especially for children.”
(d)The applicant appears to query whether there is a need for formality in relation to the connection of electricity since there are no “formal standing orders from anybody not to connect any services.” The respondent raises concerns for the safety of the applicant’s family and workers. He says the power is cut to the flat, the circuit breaker in the house is old and smoke damaged and probably needs replacing. He says that ACTEWAGL could attend without preliminary work being done, but ACTEWAGL would then send their contractors to do the work and the applicant would be required to pay for that.
(e)The applicant says if the respondent is willing to do “the work” then the applicant will pay the $2,000 deposit. This is presumably a reference to the amount set out in the ‘invoice’ of 28 October 2014. The respondent agrees.
(f)The applicant says that he has to “move quickly.” The respondent says he’ll get the key Friday (31 Oct 14) and the electrical work will commence Saturday (1 Nov 14) or Monday (3 Nov 14) and the plumber will start Tuesday (4 Nov 14). The Tribunal notes that in the ‘deposit invoice’ sent by the respondent on 28 October 2014, he refers to the start date of 1 November 2014. This is not further addressed in the applicant’s email of 28 October 2014. There is no mention of roof work in the deposit invoice or in the email exchange of 28 October 2014.
[5] Exhibit A2
After the email exchange on 28 October 2014, the respondent sent an email to the applicant dated 29 October 2014[6] providing a revised quote for:
[6] Exhibit A2
(a)Plumbing $2,896 (less hood costs $600).
i.        The Tribunal notes that the respondent’s 16 October 2014 quote was for $3,496 for plumbing for “checks and install” and that this included “$600 new hood accessories.” The quote on 29 October 2014 for $2,896 appears to be calculated on the basis that the applicant is to supply the hood accessories.
ii.      No amount has been identified for gas fitting or the stove. The 16 October 2014 quote included an amount of $1,500 for ‘stove fitting’ and $1,500 for ‘stove approx’. When the 16 October 2014 quote was sent to the applicant, the respondent made the specific comment in the covering email that ‘for gas is not considered until we sort out stove type’. It appears that the respondent did not include a quote for gas work, or the cost of hood accessories and stove when he provided the 29 October 2014 quote.
iii.     The Tribunal notes that the 16 October 2014 quote refers separately to the granny flat at the property and makes reference to other work, but there is no mention of plumbing work in the granny flat.
(b)Electrical $3,630.
i.        The Tribunal notes that this is the same as the amount in the 16 October 2014 quote for electrical “works and checks” including “new circuit breaker, wiring, certification.”
ii.      The Tribunal notes that in the 16 October 2014 quote there is no separate reference to electrical work in the granny flat.
(c)Repair roof tiles $2,900.
i.        In the 16 October 2014 quote the amount quoted for materials was $1,485 which included “sealing compound, 15 new ridge tiles, 10 normal tiles, trestle” and $2,640 for “labour to repair roof.” The total of $4,125 is more than the 29 October 2014 quote which appears to be limited to tile work. The amount of $4,125 in the 16 October 2014 quote does not include the cost of a building inspection which is estimated to cost $1,800.
ii.      The Tribunal also notes that other work on the granny flat at the property is separately identified in the 16 October 2014 quote, but there is no reference to ‘roof work’ on the granny flat.
When providing the 29 October 2014 quote the respondent notes that although the price would be $9,426, he provides a ‘discount’ of $226 and so, on behalf of the Company, the quote for work and materials is reduced to $9,200. A $2,000 deposit was to be paid and the balance of $7,000 (sic) is “to be paid after completion of each trade next week.” Noting the anticipated start date of, at latest, 3 November 2014, this suggests that the agreement was that the work would be completed by COB Friday 7 November 2014. At this stage the applicant did not raise any concern about the proposed start or end date. Although it is not clear, it appears that the amount payable for each trade was to be made when the work related to each trade was completed.
In the 29 October 2014 quote there is an additional amount of $1,000 for Mr Mbogo’s project management fee. There is no stated date for payment of the fee. All amounts were to be paid to the same nominated account or in cash. In the 16 October 2014 quote a “Project Management” cost was included of $1,753.50 which was calculated as “5% of total costs (Min $1,200).” It is not clear if Mr Mbogo would have project managed that work if the quote had been accepted, but the amount of $1,000, although more than 5% of the 29 October 2014 quote, is less than the minimum of $1,200 set out in the 16 October 2014 quote. Presumably that is why in the 29 October 2014 quote, the project management fee of $1,000 is noted to be a “reduced rate.”
The total of the 29 October 2014 quote including the project management fee was $10,200. It seems that there was no further discussion and the applicant paid the sum of $2,000 on 29 October 2014.[7]

Applicant’s witnesses
Srikavitha Kantharajah – applicant’s wife

[7] Exhibit A13

Srikavitha Kantharajah, the applicant’s wife, attended the hearing and gave evidence on 14 September 2015. She gave evidence that she attended with the applicant at the respondent’s home on 17 October 2014. She said it was discussed and agreed that the following work would be undertaken at the property:
(a)Plumbing work:
i.        Connection of gas.
ii.      Fitting gas cooker.
iii.     Repair of a leak that the applicant suspected in the bathroom of the house because the wall was discoloured and there was mould.
iv.      Repair of a leak in the granny flat toilet. She could not recall if the replacement of the top part of the toilet in the house was discussed on this occasion.
(b)Electrical work:
i.        The applicant expressly stated that his main concern was certification of electricity connection to the house and granny flat;
ii.      The respondent said that the price would include the installation of seven downlights, however Ms Kantharajah did not know, but assumed these were to be installed in the house;
iii.     Ms Kantharajah said she did not really understand how switchboards etc worked, but she understood that the electrical switches etc would be replaced or repaired so that they would function.
(c)Roof work:
i.        The applicant had said that he suspected that there was a leak in the house roof and wanted the tiles checked to address this;
ii.      Ms Kantharajoh said she asked if the granny flat would be included and the respondent said that both the house and granny flat roof would be included.
(d)Extras – Ms Kantharajah could not recall any ‘extra’ matters being discussed, she said that any ‘extras’ were arranged between the applicant and the respondent.
(e)Completion – Mrs Kantharajah said that settlement was scheduled to occur at the end of October or early November 2014. She understood that the work was to be completed within two weeks of the respondent being given the key, but she was not able to provide evidence about this as she was not present when the applicant and the respondent discussed this.

Mrs Kantharajah said she attended at the property at about 10 or 11am on 15 December 2014 to check what was happening with the inspection by ACTEWAGL. ACTEWAGL had come at about 9am. She said that Mr Thomsen, the respondent’s electrician, was there and asked her for ‘direct’ payment for the work he had done. She told him she would need to discuss this with the applicant. She left the property. The applicant then attended the property at about 6pm on 15 December 2014. He later told Ms Kantharajah that when he got there, all of the electrical equipment (switches etc) had been removed from the property.
Mrs Kantharajah said that on 16 December 2014 Mr Thomsen telephoned her and said that if the she paid him directly, he would put back everything he had removed. She said she told Mr Thomsen she would advise her husband, the applicant, of this conversation. She did not speak to Mr Thomsen again after that.

Geoffrey Myatt – witness for applicant

Geoffrey Myatt gave evidence by telephone on 17 June 2016. Mr Myatt had prepared an undated signed statement that was filed in ACAT by the applicant on 19 May 2016 (as attachment D). This document provides little assistance to the Tribunal.
In his oral evidence Mr Myatt confirmed that he is a semi-retired builder with over 40 years experience in NSW and ACT. He said that he has expertise in any work associated with building except ‘electrical and plumbing’ work.
At the applicant’s request Mr Myatt laid floor tiles in the kitchen of the house and the bedroom in the granny flat at the property. He worked for about two days in the granny flat and then after a short gap, did a further three days’ work in the kitchen area of the house. He could not recall the dates when he did the work. He thought, in answer to a question by the respondent’s representative, that it was in January 2015.
Mr Myatt gave evidence that there was someone undertaking painting work when he was doing the tiling. He says that he spoke briefly to that person. He did not actually see the painting work being done, but thought the way the work was undertaken was very unprofessional. For example:
(a)Instead of ‘drop sheets’, packing cases were “slid around” to protect the flooring.
(b)He thought it looked like the paint had been “slapped on” and was more like “white wash.”
(c)Although he did not see the painting being done he “saw the mess.”
Mr Myatt concluded from his observations that the painting was not being done professionally. He said that if he had employed the painters he would have “asked them to move on.”
Mr Myatt confirmed that when he finished the tiling work at the property the paint was still wet and he did not see the finished paint work.
The applicant had asked Mr Myatt to look at the tiles on the roof. Mr Myatt inspected the roof by viewing it from the ground. He concluded that the ‘pointing’ on the roof looked like it had been professionally done. He could not see any evidence that new tiles had been laid on the roof. He considered that if second hand tiles were used to replace broken roof tiles that they would match the existing roof tiles and these may not have been apparent. He said that although second hand tiles cannot be purchased from a tile merchant, there are places (such as ‘Revolve’) where you can buy second hand tiles.
Mr Myatt confirmed that he had seen the respondent’s electrician at the property when he was working there.
Based on Mr Myatt’s evidence the Tribunal concludes:
(a)That Mr Myatt must have done the tiling work at some time before 16 December 2014 which is the last date that the respondent or his sub-contractors entered the property.
(b)That the painting work was ongoing when Mr Myatt finished the tiling work.
(c)That Mr Myatt considered that the roof capping work was completed and professionally done. Based on his ‘inspection’ of the roof from the ground, he could not determine if other tiles had been replaced as second hand tiles may have been used.
(d)He gave no evidence about the electrical or plumbing work at the property and gave evidence that these were matters in which he did not have expertise.

Jonathon Ferguson – Ferguson’s Electricals (applicant’s electrician)

Mr Ferguson gave evidence by telephone. He confirmed that he did electrical work at the property at the applicant’s request. He said that the electrical wiring at the property was already “roughed in” and that he only had to connect light switches and power points. He said the switch-board to the house was already “fitted off and connected” and was already attached to the network.
Ferguson’s Electrical issued Invoice 442 dated 22 December 2014[8] for $2,060.04 (inclusive GST) for:
(a)Labour and parts to replace eight light fittings;
(b)Install 22 electrical items – power points and light switches;
(c)Connect the granny flat to the mains as the breaker had been ‘cut’ in the roof and a meter panel was installed outside.
[8] Exhibit A10
Ferguson Electricals issued a further Invoice 448 dated 22 December 2014[9] for $897.30 (inclusive GST) for:
(a)work on the switchboards inside the house and the granny flat. He said that when he first attended the property to provide a quote, on about 18 December 2014, the switchboards had been intact, but sometime between 18 and 22 December 2014 these had been ‘gutted’ – cost $500.40;
(b)installation of a new bench-top power point in the kitchen of the house - $132.95;
(c)new power circuit for the stove in the granny flat - $74.95;
(d)fault-finding and repair of granny flat stove - $107.43;
(e)fault-finding and repair of granny flat hot water system – no charge.
[9] Exhibit A11
Mr Ferguson agreed that invoices 442 and 448 had been paid by the applicant on 24 December 2014.
The applicant seeks, by way of compensation, an order that the respondent reimburse him the cost of this work which the applicant says was carried out to rectify the failure by the respondent to complete the electrical work pursuant to the agreement.
Ferguson’s Electricals issued Invoice 456 dated 7 January 2015[10] for $167.70 for the installation of a new power point. Although there is a hand written note on this invoice, made by the applicant, that it is for a kitchen power point which was installed by the respondent’s electrician but then removed by someone and that the applicant had paid cash for this invoice, Mr Ferguson could not locate a copy of this invoice, he could not recall which power point it related to and said that he had no record of payment by the applicant.
[10] Exhibit A12
In answer to questions by the respondent’s representative Mr Ferguson confirmed that there was no power circuit installed for the oven in the kitchen in the house and he then installed it. He confirmed that there had been a bench-top power point installed in the kitchen, but this had been removed by someone prior to him carrying out the work to ‘reinstall’ it. However, in relation to this power point, Mr Ferguson was not able to confirm that it related to Invoice 456.

David Rushanthan – applicant’s ‘handy man’

Mr Rushanthan attended and gave evidence at the hearing on 23 October 2015. Mr Rushanthan is a self-employed handy-man engaged by the applicant to undertake work at the property.
Mr Rushanthan issued, and the applicant paid, the following invoices:
(a)$75 to repair roof leak in granny flat – Invoice 692931[11] dated 8 January 2015. He affixed a “new sheet” that the applicant had purchased and also fixed the vent on the roof of the granny flat.
(b)$125 to clear gutters – Invoice 692929[12] dated 8 January 2015. Mr Rushanthan said that he saw water on the floor of the living area of the house on 8 January 2015. He thought it had been raining a few days before but could not recall exactly when. He recalled that there were broken tiles and mud in the gutters.
(c)$360 to lay tiles to the kitchen, bathroom and toilet walls in the house – Invoice 692927[13] dated 29 December 2014. He said that he laid about 20 tiles behind the cooktop in the kitchen. He said he also removed tiles, but can’t recall how many. He also laid tiles in the toilet and bathroom. He recalled that he removed some cracked and broken tiles. He thought he had laid about six to eight tiles, being all of the tiles on the wall above the bath in the bathroom. The respondent put it to Mr Rushanthan that there were no tiles in the toilet, however Mr Rushanthan said there were tiles in the toilet, but he could not specifically remember laying tiles on the toilet wall. He did not agree with the respondent who put it to him that there were two tiles which had dislodged from above the bath because the weatherboard wall material was “soggy.” Rather, Mr Rushanthan stated that two tiles were damaged and all of them then had to be replaced as the existing tiles could not be matched. He said that the damaged tiles were broken and had paint on them. In relation to the kitchen, he said he laid tiles from the floor to the bench height behind the cooktop because some of the existing tiles were damaged. The respondent referred Mr Rushanthan to photographs of the kitchen – which were included in the realestate.com.au listing[14] of the property before the applicant purchased it. These showed that the area where the cupboard was removed, at the applicant’s request, so that the new stove and cooktop could be installed, was not tiled.
(d)$156 labour to fix door locks – Invoice 692920[15] dated 20 December 2014. In response to questions about this invoice, he recalled that the front door lock was broken and he replaced it.
(e)$100 for labour to remove rubbish and $50 for trailer hire – Invoice 692923[16] dated 22 December 2014. He said he removed a lot of rubbish including an old toilet and cement bags. Mr Rushanthan recalled that he had ‘tipped’ the rubbish at Canberra Sand and Gravel in Mitchell, ACT.
(f)$266 labour to clean floors – Invoice 692916[17] dated 20 December 2014. Mr Rushanthan said he hired a machine to ‘polish’ the floors in order to remove “lots of paint and dirt.”

Respondent’s witnesses

Donald Geoffrey Thomas – Civil Engineer

[11] Exhibit A20

[12] Exhibit A19

[13] Exhibit A19

[14] Exhibit R3

[15] Exhibit A23

[16] Exhibit A23

[17] Exhibit A25

Donald Thomas gave evidence by telephone on 23 October 2015. He is a civil engineer and licensed builder. He has been a member of the Institute of Engineers since about 1970. He has worked in Canberra and elsewhere since about 1970.
At the respondent’s request he attended the property for the first time on 10 December 2014 to assess the status of the work that the respondent was doing. His signed statement dated 14 April 2015[18] was tendered. In that document he sets out his opinion as to the status of the work done by the respondent when he inspected the house and the granny flat at the property on 10 December 2014.
[18] Exhibit R5
He concludes that in the granny flat the painting was complete, a new toilet was installed and the electrical work was ‘in progress’. In the house the plumbing was 100% complete, the electrical work was at the stage of ‘final fit off’ and the painting was 80% complete.
The applicant asked Mr Thomas how he had determined the ‘scope’ of the work which had been agreed between the parties. Mr Thomas said that he relied on his experience to make this assessment.
The Tribunal considers that Mr Thomas’ evidence is of limited value as he did not know what the parties had agreed. However Mr Thomas was called as a witness by the respondent and his evidence supports the applicant’s assertions that as at 10 December 2014 painting in the house was incomplete and electrical work in the granny flat was ongoing. The respondent did not challenge Mr Thomas’ conclusions.

Elisaria Samwel Nassari – respondent’s ‘handyman’

Elisaria Samwel Nassari gave evidence that he was engaged by the respondent to undertake work at the property.
In his signed statement dated 10 December 2015[19] and oral evidence Mr Nassari said that he recalled he was at the property for about 3 weeks in October 2014. He recalled that:
(a)he cleaned and scraped ceilings and walls in the house and granny flat to prepare them for painting;
(b)he did not paint the toilet in the house;
(c)the respondent supplied the paint;
(d)he swept the floors and cleaned the windows in the house and granny flat, and cleaned the eaves;
(e)he collected and removed rubbish from the house and granny flat and took this away; and
(f)he placed paint lags (drop cloths) and protective sheeting on the floors and placed tape on the doors and windows and protected these with plastic sheeting while the painting was done.
[19] Exhibit A3
Mr Nassari said that while he was working he saw the applicant and the respondent’s electrician at the property. He did not speak to the applicant, but he recalls that the electrician complained about payments by the applicant. The applicant disputes that Mr Nassari saw him at the property.
In answer to questions by the applicant, Mr Nassari said that he worked with two other painters. He did some painting, but his main task was to clean and prepare for painting and support the painters in their work. He said the walls were very marked and he spent about 1.5 weeks at 2-3 hours per day cleaning the walls. The painters then came and worked for the remaining 1.5 weeks that he was at the property and he worked with them for about 2-3 hours a day during this period.
Mr Nassari said that he did not paint the laundry or toilet in the house, but did do painting on the walls and ceilings in the rest of the house. He said that in the granny flat he did not paint the toilet, but did paint the walls and ceilings in other rooms. He said both rollers and brushes were used to paint in both the house and the granny flat.
Mr Nassari said that he spent about 2-3 hours a day for 3-4 days cleaning the granny flat before painting which then took about 3-4 days after that. He said he locked the door of the granny flat when he was finished working in it and he had two keys.
Although Mr Nassari did not assert that he had painted the toilet, the respondent submitted that someone had and this was confirmed when the respondent undertook his final inspection of the painting.
The applicant asserted that the Tribunal should not accept Mr Nassari’s evidence for several reasons. The applicant submitted that as no one had access to the property until after 6 November 2014, Mr Nassari’s evidence that he worked there for three weeks in October 2014 is incorrect. Further, the applicant said that he was never at the property between 9am and 4:30pm on weekdays. Mr Nassari gave evidence that he did not work weekends and so his evidence that he had seen the applicant in the middle of the day, and that the applicant had seen him, is inaccurate. Further, the granny flat was never locked as that is where the applicant stored his gardening equipment from 6 November 2014 to 5 January 2015 when he gave the key to the agent who then found a tenant for the property. Thus Mr Nassari’s evidence that he used a key to lock the granny flat is also inaccurate.
Mr Nassari made no mention of the hole in the wall outside the toilet. The respondent said that this area, where there was a hole where the old power board had been removed, was to have been repaired by the applicant. The applicant had not repaired the wall and so that area could not be, and was not, painted. The Tribunal notes that in the respondent’s email to the applicant dated 3 December 2014, the respondent says he has to “re-order cornice to patch up previous old circuit.” The Tribunal is satisfied that this is work that the respondent had agreed to do as part of the painting work.
The Tribunal is satisfied that Mr Nassari did work at the property at the respondent’s request. Whilst the information he provided about dates may have been incorrect and the Tribunal does not know if he had and used a key to the granny flat, the Tribunal considers that Mr Nassari did his best to give truthful evidence about what he did and how long it took him to do work at the premises. Mr Nassari’s evidence was that although he did some painting, his main role was to clean and prepare for the respondents’ painters. The Tribunal notes that the respondents’ painters did not give evidence and no invoice or quote was provided by the respondent in relation to their work.

Jason Vetsavong – the respondent’s roof contractor

Jason Vetsavong gave evidence by telephone. His signed statement was dated 10 December 2015 (the day of the hearing). He confirmed that the date of 27 November 2015 appearing on the statement was incorrect.[20] Mr Vetsavong said that the reference to ‘vacuum’ (at dot point 5) in the statement should be amended to ‘blower’. Mr Vetsavong otherwise confirmed that the information in his statement was correct.
[20] Exhibit R11
Mr Vetsavong gave evidence that he completed the roof work on the house at the property on 6 November 2014. He and a colleague had worked together on the site. They removed and took broken tiles to the tip. He said it was his responsibility to remove his rubbish.
Mr Vetsavong confirmed that he used new tiles to complete the ridge capping and ‘used’ tiles to replace damaged tiles on the roof of the house. He did work to ‘bed’ and ‘replace’ broken tiles. He said that although he had provided a quote for work on the granny flat roof, because it was in an area that was attached to an unapproved structure, a shed, this work had not been undertaken.
Mr Vetsavong said he provided a written quote, but was unable to check – as he was not at his office when he gave telephone evidence – on what date he had provided the quote. He recalled that his quote was for $3,000-$4,000.

68.Mr Vetsavong could not recall exactly when he had started the work, but says that a resident of a neighbouring property – ‘Bob’ – was home and had allowed Mr Vetsavong to run electricity, by an extension cord, from his house to the property, as there was no power at the property and the respondent had not provided a generator. Mr Vetsavong said that his recollection was that he was paid about $2,000 by the respondent and there was still about $1,000 outstanding on the invoice that he had issued for the work. His recollection was that he had worked on two consecutive days to finish the job. He said that he works every day including weekends when necessary.

Mr Vetsavong said that he did inspect the work subsequent to completing it and was happy with it. He said he had done roofing work for 25 years. In answer to questions by the applicant about what might have been the cause of a leak in the house subsequent to him completing the roofing work, Mr Vetsavong said that it was not because of the work he had done, but may have been associated with the installation of the flue at the property.
Mr Vetsavong said that he and ‘Justin’ were partners in the roofing business of J & J Total Property Maintenance which has a company address in Kambah, ACT. He purchased the tiles used in the job from a business called J Thackeray. He could not recall the exact dates when the respondent confirmed that his quote was accepted, or the exact date when he returned to the property to inspect the work after it was completed. However, he gave evidence that he did recall that he had replaced about 20 broken tiles.
At the end of Mr Vetsavong’s evidence the respondent submitted that he had approached Mr Vetsavong about the job in October 2014 and, after the agreement on 29 October 2014 between the applicant and the respondent, he had engaged Mr Vetsavong to do the job. Indeed, he had moved Mr Vetsavong from another job in order to undertake the work for the applicant. Because, on the first day that he attended the property to commence work Mr Vetsavong was ‘on site’ at the property before the respondent arrived, Mr Vetsavong had called the respondent to say he needed power. Before the respondent could arrange for a generator, Mr Vetsavong had arranged to connect an extension cord to the premises of a neighbor. By the time the respondent arrived at the property on 6 November 2014 Mr Vetsavong had started work.

The applicant said that his neighbour at the property had confirmed to him that the he had provided power only for Mr Myatt. The neighbour did not give evidence.
The applicant said that when he inspected the roof of the house, from a ladder, on 8 November 2014, he saw no evidence of cement or broken roof tiles to demonstrate that work had been done. In addition he said that all of the tiles had moss growing on them. This would not have been the case even if second hand tiles had been used to replace broken tiles and this was further evidence that no tiles had been replaced. The applicant said that he saw old sand and leaves in the gutters when he took photos on the 5 January 2015 to show there was water caught in the gutters, this demonstrated that the gutters had not been cleaned by Mr Vetsavong when he did the work.

Jose Rasic – the respondent’s plumber

Jose Rasic gave telephone evidence on 10 December 2015. His invoice for materials and labour for work done at the property totaling $2,496[21] was for:
[21] Exhibit R7
(a)    $1,011 for items supplied:
i.       basin, shower, bath and sink tapware;
ii.      wall top assembly;
iii.     toilet cistern and S Trap pan;
iv.     laundry tub; and
(b)    $1,485 labour to install:
i.       a range hood flue (supplied by the applicant) - $600;
ii.      removal and installation of toilet - $300; and
iii.     connection of new tapware - $450.
Mr Rasic said that he had provided a quote to the respondent for this work. He said that he is not licensed to work with gas and so did not provide a quote for gas work. He had a vague recollection that the respondent had asked him to collect the applicant’s gas cooker but could not remember the details about this.
It was Mr Rasic’s recollection that he had removed and installed a new toilet in the house at the property. He could not remember doing work in the granny flat. He also ran the exhaust for the range hood through the roof in the house. He did not remove any part of the walls in the property when doing the work. He issued an invoice to the respondent for the work. The invoice was paid.
In answer to questioning by the applicant, Mr Rasic said that he did not meet the owner of the property. Mr Rasic thought he was the only one from his business who worked at the property.
Although Mr Rasic gave evidence by telephone, the applicant submitted that he had met the person who undertook plumbing work for the respondent and this was not Mr Rasic.
The respondent gave evidence that the replacement of the granny flat toilet had been done by his ‘handyman’ at an additional cost of $600. The respondent said that he had agreed to meet the cost of the purchase and installation of a ‘mixer barrel’ in the shower and three mixer taps because Mr Dhammith had suggested this as a way to please the applicant and foster a positive ongoing working relationship with him. The respondent said that his handyman had installed the tapware in the bathroom, however he had not been able to install the mixer tap in the kitchen as he was unable to remove the old tap. The applicant submitted that Mr Rasic’s evidence about having installed the mixers was inconsistent with this submission.
Mr Rasic had a very poor recollection about the work he did at the property. The Tribunal accepts that it was the respondent’s handyman that undertook some of the plumbing work included in the 29 October 2014 agreement. The Tribunal considers that Mr Rasic’s evidence was of limited value in determining what the parties agreed and what plumbing work was undertaken on behalf of the respondent.

Agreement for work made 29 October 2014

The Tribunal finds that the first agreement between the parties was made on 29 October 2014 when the applicant accepted the respondent’s 29 October 2014 quote for $10,200 by paying the deposit of $2,000. Whilst there is little written record as to the specific details of the scope of the work to be done, the cost of the work for plumbing, electrical and roof work and the management fee was agreed.
The Tribunal accepts that there were discussions between the applicant, his wife and the respondent about what work would be done. As noted, the 28 October 2014 ‘invoice’ and the email exchange between the applicant and the respondent on 28 October 2014 suggests that the electrical work would commence on Saturday 1 November 2014 or, at latest, on Monday 3 November 2014. The plumber was to start on Tuesday 4 November 2014. The work was to be completed within a week. The full outstanding amount of the agreed contract price was payable, at latest, by the completion date of all trades.

The commencement date

The respondent says that on 31 October 2014, although it had been agreed work could start on 1 November 2014, the applicant advised the respondent he could not get the key until 3 November 2014. The respondent said that on 3 November 2014 the plumber attended early but as he could not get into the property, he left. The Tribunal notes that the respondent had said the plumber was to come on 4 November 2014.
The respondent said that on 3 November 2014 the roof contractor turned up at about 11am. The respondent rang the applicant who advised that he did not yet have the key. The applicant gave evidence that he told the respondent he would have to leave and work could not commence. The respondent gave evidence that in the telephone conversation he had with the applicant, the applicant did not tell him the roofer could not commence work, but rather that the applicant told the respondent “not to get caught by the agent.” The respondent said that the applicant said that the other trades would have to wait. When on 4 November 2014 the applicant still did not have the key, he told the respondent to return on 6 November 2014. The respondent says that the roof contractor completed 90% of the work on 3 November 2014 and returned on 6 November 2014 and completed the job.
The applicant says that there was regular contact between the applicant and the respondent after 29 October 2014 and the respondent was aware that the initial settlement date had been revised and would not occur until 5 November 2014, which is when the applicant would be given the key, and the applicant could then give the respondent the key so that work could commence on 6 November 2014.
The respondent says that he was not aware of the revised settlement date until the applicant told him on 3 November 2014. Although the respondent was able to reschedule the plumber and electrician, as the roofer did not need access to the property, the roofing work was commenced on 3 November 2014.
The respondent submits that the work identified in the 29 October 2014 agreement between the parties was only part of the work that was required to make the property ‘livable’. There was additional work that needed to be undertaken. This additional work was not part of the 29 October 2014 agreement between the parties. Some of this additional work was referred to in the 16 October 2014 quote provided by the respondent, but was not then included in the 29 October 2014 agreement. Some of this work had been referred to by the respondent in the email exchange between the parties on 28 October 2014, for example painting and dealing with the smell of mould.
The Tribunal finds that on 29 October 2014 the parties agreed that work could start on, or shortly after, 1 November 2014. On 31 October 2014 the applicant advised that this date had changed to 3 November 2014, and on 3 November 2014 the applicant advised that work could not commence until the morning of 6 November 2014.
The Tribunal finds that the parties had agreed that the work pursuant to the 29 October 2014 agreement would be completed within a week and, with the revised start date, this would be on or shortly after 13 November 2014.
The Tribunal notes that there was further communication between the parties about the completion date. Although the applicant complained and, on several occasions asked the respondent to stop work and return the key so that he could arrange for others to complete the work, the last time the parties seem to have ‘agreed’ about timing was on Wednesday 3 December 2014. On 3 December 2014 the respondent identifies that the following work had not been done:
(a)Approval and connection of electricity by ACTEWAGL – initial inspection scheduled for 3 December 2014 and then a further, final inspection scheduled for 11 December 2014. On 11 December 2014 it seems further action was required and the final inspection in fact took place on 15 December 2014.
(b)Plumbing work – to be completed by ‘Thursday’ – presumably 4 December 2014 – including re-do mixers (bath and wash basin); install shower rail; change granny flat toilet to new, tap leak, change washer on tap at front of house, kitchen mixer which needs welding. The Tribunal considers that from this list it appears that the only plumbing work that had been completed was to test water to the house and repair the house toilet.
(c)Painting – still some ‘patch up’ for planed doors in the house and awaiting cornice to patch area where old circuit board removed in hall – no final date is given.
(d)The hood flue in the kitchen of the house is to be changed and the applicant will be required to pay for materials, but not labour – no final date is given.
Although the applicant appears to accept this ‘further delay’, on 11 December 2014 the applicant took action to end the agreement. The respondent did not return to the property until 16 December 2014. It seems that no further work was done by the respondent’s workers after 11 December 2014, except for the attendance of the electrician on 15 December 2014 for the final inspection by ACTEWAGL.
Based on the available information the Tribunal is satisfied that the applicant raised concerns about delays and the completion date with the respondent in writing and verbally on and from 19 November 2014. It is clear that the work was still not complete when Mr Thomas, the civil engineer who gave evidence for the respondent, attended on 10 December 2014. The Tribunal considers that it was reasonable for the applicant to have ended the agreement and arranged for alternative workers to complete work after 11, or at latest 15, December 2014.

Scope of the agreed work

Roof repair

The applicant said that his main concern was that there appeared to be water damage to the ceiling in the house and he thought there was a roof leak. The applicant wanted the respondent to identify and repair the cause of the leak. The respondent had agreed to do the ridge capping, repair or replace broken tiles and clean the gutters. The applicant asserts that as there was a substantial leak in the house at the property in January 2015 after heavy rain, he concluded that the respondent had not repaired the leak, and or had not repaired or replaced all or any broken tiles, and or had not cleaned the gutters as agreed. In other words, the respondent had not done, or adequately undertaken, the agreed roof work.
The respondent says that he undertook the roof work he agreed to do, as is evidenced by his request for payment on 6 November 2014[22] and email of 19 November 2014.[23] This work was commenced on 3 November 2014 and completed on 6 November 2014. The respondent also tendered Bureau of Meteorology information about rainfall as evidence to confirm that there was rain in November and December 2014 and no leak occurred. This further demonstrates that the work was adequately done.
[22] Exhibit A3
[23] Exhibit A5
The respondent said that he had, in his initial quote, included and recommended a building inspection report to identify the cause of the roof leak in the house, but the applicant had not wanted to incur that expense. The respondent says that there was work needed on the vents in the roof. The respondent said that work on the vents was not included in the 29 October 2014 agreement. The respondent says he did advise the applicant that work on the vents would need to be done, but that would be at additional cost. The respondent says the applicant did not want that work done. The applicant gave evidence that although there was, from marks on the ceiling in the house at the time he bought it, evidence of a roof leak and there was some mention of this in the building report available when he purchased the property, he did not get a further report. He did not deny that the respondent had advised him to get a further report.
The applicant gave evidence that initially, after 6 November 2014, he accepted the roof work had been completed and paid an invoice for that work. However on about 8 or 9 November 2014 he was at the property and there was a ladder leaning beside the house so he climbed it to look at the roof. He said that he saw cracks in tiles on the roof and could not see any evidence of ‘changed tiles’. He then asked the respondent for a copy of the receipt for the roofing work so that he could confirm that the work had been done. The respondent told the applicant ‘not to worry’ that the roofing work had a “7 year warranty” and that 80 tiles had been replaced.
The applicant said that ‘a few days later’ – around Christmas 2014 – it rained and there was a leak in the house. The applicant again climbed a ladder and looked at the roof of the house. He said he saw 3 or 4 tiles with cracks and did not see any ‘new’ tiles. He concluded that no roofing work had been done. He said that he had only paid for the work, when the respondent requested payment on 6 November 2014[24] because the respondent had said it was done and he accepted this. The respondent gave evidence that if there is a crack in the “ridge” of a tile, the tile does not need to be replaced, but if the crack is in the “valley” then it does need replacement.
[24] Exhibit A3
The respondent says that the roof work was done properly and professionally. About 60 ridge capping and 20 ordinary tiles were replaced, being a total of 80 tiles. Following concerns expressed by the applicant, the respondent arranged for the roof contractor to return on about 10 November 2014 to inspect the work. The respondent said the roof contractor told him that there may be a problem with the vent on the roof. The respondent gave evidence that he told the applicant that if the vent needed to be repaired or replaced that this is specialist work and there would be an additional cost. He says the applicant declined to have this work done. The respondent agrees that the applicant did not meet with the roofer, but says he did not consider this to be necessary. He said the work is guaranteed for 10 years.
The respondent says that the applicant did ask him to fix the granny flat roof. The respondent says that repair of the granny flat roof was not “within the scope” of the 29 October 2014 agreement. On 10 November 2014 the respondent looked at the granny flat roof. He formed the view that the granny flat was attached to an unapproved structure (a shed) and if his workers did work on the granny flat roof this would risk his insurance. The respondent said that the applicant also got on the granny flat roof and said it could be repaired ‘with tape’. The respondent said that would not be appropriate. He did not agree to do the work.
The respondent says that there was no agreement at the meeting he had with the applicant and his wife on 17 October 2014 that the work would include repair to the granny flat roof. The respondent says that the work done to the house roof was complete and the applicant should pay the full contract price of $2,900.
The applicant agrees that he and the respondent had a conversation on 10 November 2014, but says that the agreement made after the 17 October 2014 conversation always included repair to the granny flat roof. Further the applicant says that the work undertaken by the respondent’s roof contractor did not address the roof leak in the house. In addition, the applicant says that when, between 24 December 2014 and 4 January 2015, there was a roof leak which resulted in water entering the house through the house ceiling, the gutters had to be cleaned on 6 January 2015. The applicant says that on 6 January 2015 there were broken tiles, cement and leaves in the gutters, and implements and chemicals had to be used to clear them. The applicant asserts that the respondent’s roof contractor had failed to remove the broken tiles and cement after doing the roof work, this then blocked the gutters and resulted in the roof leak prior to 6 January 2015.
The information from the Bureau of Meteorology website showing temperature and rainfall for Canberra in November and December 2014 and January 2015[25] indicates that in the period from 1 November 2014 until 6 January 2015 there was some rainfall in Canberra. In particular 13.6mm fell on 16 November 2014, 19.6mm on 4 December 2014 and 42.4mm on 7 December 2014. The respondent said that despite the more than 60 mm of rainfall recorded after 6 November and before 16 December 2014 there was no complaint by the applicant about leaks at the property. The respondent says that this demonstrates that the roof repair had been properly undertaken and was effective.
[25] Exhibit R8
The applicant submitted that regardless of the information relied on by the respondent, there was heavy rainfall and a roof leak at the property around Christmas 2014 and before 6 January 2015. The Tribunal notes that 43mm of rainfall is recorded on 11 January 2015.
The respondent submitted that the reason the ‘replacement’ tiles were not obvious is because they were not new, but rather the roof contractor used second hand tiles so that they visually blended with the existing tiles. The respondent said that second hand tiles can only be purchased by professional tilers, as the vendors will not sell these to the general public. In addition, the respondent said that he only became aware that there was an unapproved structure attached to the granny flat because he “worked this out.” The respondent said he asked for a copy of the building inspection report held by the applicant but this was not provided. The applicant denies this request was made.
The applicant submits that for the reasons set out in paragraphs 96-103 above, the Tribunal should not accept that the work was done either at all or properly. The applicant submits that the Tribunal should make orders that no payment should be made to the respondent and the respondent should reimburse the applicant for the costs incurred to rectify the respondent’s failure to carry out this work.
The applicant gave evidence that his decision to include roof work in the agreement between the parties was prompted by concerns that there was evidence of a leak in the house. The Tribunal notes that no evidence was provided of similar concerns about the granny flat. The 29 October 2014 quote refers explicitly to tiling work. The roof work included in the applicant’s claim relates to work on the granny flat which does not involve tiling. There is no specific evidence before the Tribunal as to the cause of the roof leak in the house in January 2015, nor any evidence that further tiling work on the house was undertaken or necessary subsequent to November 2014.
In an email to the applicant dated 14 November 2014[26], the respondent says that in response to concerns raised by the applicant on ‘Tuesday’ (presumably 11 November 2014) the respondent’s roof contractor inspected the work and did observe, and applied glue to repair, some damage to a vent on the roof of the house. It is possible this damage was caused by one of the respondent’s contractors, but there is insufficient evidence for the Tribunal to make a specific finding about this.
[26] Attachment A5 to documents filed by the applicant in ACAT on 31 March 2015
The applicant inspected the roof of the house on two occasions after 6 November 2014, but on neither occasion mentioned that the gutters had not been cleaned. Nor did he complain that the respondent’s roof contractor had left materials, such as cement and broken tiles, on the roof. Indeed he has asserted that no work was done. Several witnesses, including the applicant’s witness Mr Myatt, concluded that the ridge capping work was completed adequately. The respondent and his roof contractor, and Mr Myatt, provided an explanation as to why second hand tiles were used to ‘replace’ broken tiles and use of second hand tiles explains why the replaced tiles were not obvious. Although the applicant asserts that there was ‘moss’ growing on all tiles and this would not be the case even if second hand tiles were used, on balance the Tribunal accepts that the roof work on the house was done as agreed.

The respondent is to pay the applicant compensation of $3,667.09 to complete the agreed contract work:
(a)$2,610.08 (inclusive GST) electrical work;
(b)$657.01 (inclusive GST) plumbing work;
(c)$400 painting work.
The respondent is to pay $567.09 to the applicant by close of business 3 June 2016 in final satisfaction of these orders.

………………………………..

General President L Crebbin

for and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	XD 7 of 2015
PARTIES, APPLICANT:	Kantharajah Thillainathan
PARTIES, RESPONDENTS:	Tabora Constructions Pty Ltd and Fredrick Mbogo
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	Ms Baker (on 17 & 26 June)
SOLICITORS FOR RESPONDENT	Mr Pasipanody (on 17 & 26 June)
TRIBUNAL MEMBERS:	Ms W Corby – Senior Member
DATES OF HEARING:	17 June 2015 26 June 2015, 14 September 2015 12 October 2015 23 October 2015 10 December 2015