Tuck v White

[2015] NSWCATCD 126

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Tuck v White [2015] NSWCATCD 126
Hearing dates:	27 August 2015
Decision date:	07 October 2015
Jurisdiction:	Consumer and Commercial Division
Before:	J Lynch, General Member
Decision:	1 The consumer Meagan Tuck is to pay the contractor David Glenn White the sum of $2,327.60 pursuant to section 8 (2) (b) Consumer Claims Act by instalments of $1,163.80 per fortnight first payment 9 October 2015.
Catchwords:	Reasonable market cost of labour and materials; due care and skill
Legislation Cited:	Home Building Act 1989 Consumer Claims Act 1998
Category:	Principal judgment
Parties:	Meagan Tuck (applicant) David Glenn White (respondent)
Representation:	Both self represented:
File Number(s):	HB 15/35191
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicant Meagan Tuck (“consumer”) seeks an order that she not have to pay the amount invoiced to her by the respondent David Glenn White (“contractor) in the sum of $2,877.60. The contractor states he undertook work for the consumer pursuant to a written quote and that this sum is due to him as no payment has been made for the work undertaken. Further the consumer states the cost of rectification is $2,700 plus GST = $2,970 The contractor concedes there is some repointing required to the capped tiles.

Jurisdiction

2. The claim was filed using a Home Building application form in the Consumer and Commercial Division on 20 May 2015.

3. Due to amendments to the Home Building Act which apply to claims lodged after 1 March 2015 Clause 2 (3)(a) of Schedule 1 Home Building Act excludes from the definition of ”home building work” work where the reasonable market cost of the labour and materials involved does not exceed the amount prescribed in the regulations which is currently $5,000. So the Tribunal does not have jurisdiction to determine this claim under the Home Building Act as it is below the threshold for residential building work. There is no suggestion on the facts of this case that the contract price of $2,877.60 does not represent reasonable market cost of labour and materials. I find that the reasonable market cost of the work and materials does not exceed $5,000. The claim may be determined under the Consumer Claims Act. The applicant is a “consumer” as defined in section 3 as a natural person to whom a supplier has agreed to supply services under a contract. The services provided are roof restoration repointing work.

Claim

4. The consumer has lodged a claim for relief from payment of a specified sum of money which may be made under section 3A (1) Consumer Claims Act. The Tribunal has jurisdiction to hear a consumer claim. The claim is within time.

5. In determining a consumer claim the Tribunal may make orders set out in sections 8 (1) and (2) Consumer Claims Act which provide:-

(1) In determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may, subject to this Part, make such one or more of the following orders as it considers appropriate:

(a) an order that requires a respondent to pay to the claimant a specified amount of money,

(b) an order that requires a respondent to perform specified work in order to rectify a defect in goods or services to which the claim relates,

(c) an order that requires a respondent to supply to the claimant specified services other than work,

(d) in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the claimant to a respondent,

(e) an order that requires a respondent to deliver to the claimant goods of a specified description,

(f) an order that requires a respondent to return to the claimant specified goods which are in the possession or under the control of that respondent, whether the property in the goods has passed or not,

(g) an order that requires a respondent to replace goods to which the claim relates,

(h) an order that requires:

(i) a respondent to refund all or part of the purchase price of specified goods that are in the possession or under the control of the claimant, and

(ii) the claimant to return all or part of those goods to the respondent,

whether the property in the goods has passed or not.

(2) In determining a consumer claim wholly or partly in favour of a respondent to the claim, the Tribunal may make such one or more of the following orders as it considers appropriate:

(a) an order dismissing the claim or a part of the claim,

(b) an order that requires the claimant to pay to the respondent a specified amount of money,

(c) an order that requires the claimant to return to the respondent specified goods which are in the possession or under the control of the claimant, whether the property in the goods has passed or not.

Evidence

6. The parties gave evidence on oath and presented the following documents. The consumer provided her statutory declaration sworn 22 July 2015, 22 colour photos, Roof Inspection Report dated 22 July 2015 with attached photos 1-5. The contractor provided a Condition Inspection Report 99715 from Goldspink Builders Pty Ltd. This report was provided to the consumer on the day of the hearing. After being given the opportunity to read it the consumer elected to proceed with the hearing and did not seek to apply for an adjournment. Neither party called their expert witness to give evidence but relied on their respective report. Mr Mavroudis was called briefly for the contractor but he held no recollection of the conversation between the parties when the quote was provided so he was not further required. The parties were given the opportunity to conciliate on 27 August 2015 as this was the first time both had attended the Tribunal. The conciliation was unsuccessful.

7. Neither of the estimate or report provided information to the Tribunal of the author’s qualifications and area of expertise and did not comply with the requirements for expert evidence in NCAT.. The contractor’s report writer Mr Goldspink’s overall approval of the quality of the work is contradicted by the contractor’s own evidence that particular areas needed repointing. The aspect of the profile of the tiles on the roof is considered where relevant below. Mr Wicker for the consumer who is according to the contractor a competing tradesman has given his view of what ought to be done. He was not briefed with a copy of the quote outlining the work agreed to be done which was of much narrower scope. The Tribunal is conscious of the quantum of this claim in considering the nature of the expert evidence, however, for the reasons referred to in this paragraph the material presented from each expert is afforded little weight.

Whether a contract was formed between the parties

8. The consumer contends that there was no contract between her and the contractor for roof restoration work and the work was undertaken by the contractor without her agreement or authority.

9. The consumer’s evidence given on oath at the Tribunal was that she obtained a quote in writing from the contractor, discussed when he could start and then after going inside and reading the amount of the quote realised she was not in a financial position to proceed for a couple of months. The consumer stated: “I walked back in took a look at the quote (I) didn’t actually look at it in front of them.” And later she said “ “ I looked at quote when back inside before (I) went to work”. There was no further communication by Ms Tuck indicating to the contractor that she did not wish to proceed.

10. The contractor’s evidence is that the quote was provided, he indicated when asked that he could start not the end of next week/ the beginning of next stated. “I’ll ring you and let you know” and left thinking he was right to start.

11. The consumer’s statutory declaration has a different version “...on the day a written quote was provided at the time of inspection prior to their departure totalling $2,877.60. At the time I made no commitment to the works or a timeframe for the work to be commenced, as I realised with the quote I had been handed that I was not in a financial position to proceed>” In this version there is no reference to deciding after going inside not to proceed. There is also no reference to a conversation about a start date ....

12. The Tribunal finds the contractor subsequently notified the consumer he would start on a particular day by leaving a message on her mobile phone and that this proposed date was within the scope of the contract formed between the parties. The Tribunal prefers Mr White’s version that a contract was formed as Ms Tuck’s oral evidence and statutory declaration on this point were inconsistent.

13. Even if there was not a concluded agreement on 16 March 2015 the Tribunal finds that at the latest on 1 April 2015 after the contractor had done some preparatory work he spoke to the consumer who had by then accessed his message to her of 2 days earlier and she stated in evidence that she “authorised completion of what had been started”. The Tribunal finds the parties had formed a contract and finds the work undertaken was pursuant to the written quote provided.

Whether due care and skill was provided

14. Both parties provided evidence on the photos submitted by the consumer and the physical evidence shown in the photos will be considered by the Tribunal first.

15. Photo 2

The consumer states this is a view of the front peak of the house on right hand side looking at the house. The alleged defects depicted are (from left to right where arrows are drawn on the photo)

(i) Slags shown in two places,

(ii) Not covering the mortar and

(iii) Mortar rough

The respondent agrees with (i) and (iii) but states (ii) was not part of the contract.

Finding on the evidence (i) and (iii) represent a lack of due care and skill. The Tribunal is not satisfied that (ii) is part of the contract set out on written quotation 587.

16. Photo 3

The applicant states this is the left of the house at front and the defects depicted are

(from left to right where arrows are drawn on the photo)

(i)Tile should have been put back aligning ridge

The contractor states he did not move those tiles. When a tile sits up it is usually a twisted batten. To rectify this the tile would need to be tapped with a toe. The Tribunal is not satisfied the contractor caused the tile to sit up. There is no evidence of the way it was before the work was undertaken The consumer is unable to say when the tile was dislodged.

(ii) Unfinished edge on left.. On the front gable end this is not visible from the roof. The contractor agrees this requires rectification and the Tribunal so finds Photo 4 is a close up of the subject of photo 3

17. Photo 5

The consumer describes this as the front left roof peak showing edging of old and new mortar. The two arrows point to uneven clumps of mortar. The consumer in her evidence was unsure whether this was work done by the contractor “I’m not really sure whether it was old or new could be old or new-I’m not 100% sure”.

The contractor’s position is this was what was on the house. “We didn’t touch that”. No mortar was applied by the contractor only repointing was included in the contract. The written quote supports the contractor’s position and this defect is not established on the evidence.

18. Photo 6

The consumer states this depicts a valley and the defects are:

(from left to right where arrows are drawn on the photo)

(i) Dry pieces of mortar/pointing left there The contractor states these pieces of dag could be flicked off with a fingernail.

The Tribunal is satisfied that the defect shown at (i) is established and will involve minor tidying up to remove the dag shown.

(ii) Scrape of pointing

The slag depicted in the valley is a minor cosmetic issue. The zoom effect of the photo has resulted in a close up image where only partial views of single tiles are visible on an A4 size photo. Taken in proportion to the actual size on a roof this blemish is relatively minor. The visibility of this point from the ground is not shown only a photo of the valley meeting the gutter from a rooftop view. The slag is located immediately abutting a tile repair.

(iii) Mortar on tiles should be straight

The contractor used some flex to cover a broken tile edge otherwise it would leak. The contractor states although the contract was for repoint only this tile was repaired. The quotation supports the contractor’s case that chip tile repairs were not required and a consequence of repairing the tile at this point with flex is an uneven finish. The Tribunal is not satisfied on the evidence this represents lack of due care and skill The edge along the tile at arrow 3 is uneven on a close up view as the profile of the tile is ridged. This leads to an undulating pattern. Mr Goldspink’s report is focussed on this feature and he states:- “…the surface has a rough finish due to the profile of the horizontal profile of the roof tile. Motor pointing could not be finished smooth as it would have left a smeared finish to the horizontal pattern in the roof tiles.” His report includes two photos depicting the pointing and impact of the tile profile. The Tribunal takes into account the photos in the report and concludes this work does not represent lack of due care and skill.

(iv) incomplete work abutting gutter

There is no evidence from the consumer about this point and the contractor explained the reason for the pointing falling short to allow fanning into the gutter. The Tribunal is not satisfied on the evidence that this work represents work lacking due care and skill.

19. Photo 7

The consumer states this depicts defects from left to right arrows in the photo

(i) and (ii) Sloppy edges

(iii) Dried mortar in valleys

(iv) Silicone on tiles

The parties did not specifically address this photo in oral evidence. The issues replicate issues raised by the applicant in photo 6 with the exception of the silicone. The silicone has been applied to a cracked tile to improve the roof. The cracked tile is clearly visible in the photo beneath the silicone applied. The contractor outlined his practice of applying silicone to cracks and flex where the chipped piece was missing. Although Mr Wicker would prefer replacement this was outside the budgeted work which the consumer had contracted for the contractor to undertake. There is no specific evidence of any diminution in aesthetic value of the property by the remedial application of silicone to this tile and accordingly on the evidence there is no lack of due care and skill in undertaking the contracted work at this point..

20. Photo 8

The consumer states this depicts the following defects

(from left to right using the arrows)

(i) front feature right hand garage side gouge from the mortar

(ii) and (iii) sloppy edges

The contractor’s evidence is the gouge is a thumb print from a roof restorer coming down the roof doing the collars.

The contractor concedes that this particular area is rougher and could be repointed and smoothed up. His evidence is that there were three workers working on the roof and the finish is variable in places.

The Tribunal finds that the defects depicted in photo 8 represent work not carried out with due care and skill and require rectification by smoothing and repointing in the areas shown.

21. Photo 9

The consumer states this depicts a cracked tile which was not siliconed and she agrees this was not part of the contract.

This claim is not established to be a defect as it falls outside the scope of the contract.

22. Photo 10

The consumer states this shows old mortar cement and lichen left in front gutters which she cleaned out.

The respondent states the part they pointed (the capped tiles) had moss growing on it which involved some cleaning as preparatory work. The material in the photo represents mortar sand and grime over the years which were not placed there by the respondent. The Tribunal is not satisfied the debris was placed there by the contractor. Further the written quote supports the contractor’s statement that cleaning gutters was not a service that was quoted and fell outside the contract.

The Tribunal prefers the contractor’s evidence on this point as it is consistent with the written quote.

23. Photo 11

This photo depicts additional material in the gutter and the Tribunal makes the same finding as for photo 10 for the same reasons.

24. Photo 12

The consumer states this photo depicts the edging at the back of the house

The contractor concedes that the outer edge of the repointing requires rectification although the magnification of the photo and profile of the tile emphasizes the defect. The Tribunal finds that the outer edge of the back of roof represents a lack of due care and skill and requires rectifying

25. Photo 13

The consumer states this is another photo of the back depicting the same issue as photo 12. The Tribunal makes the same finding as for photo 12 for the same reasons.

26. Photo 14

The consumer states this shows repointing finish with the new not covering the old. The contractor states this was on the same side as photos 13 and 14 and that he agrees the finish is ordinary and requires repointing.

The Tribunal finds on the evidence that this defect is established and rectification is required.

27. Photo 15

The consumer states this defect is an unfinished corner at the front right hand side of the house. The contractor’s evidence is that this has been rectified by his worker Mr Mavroudis when they returned to complete the work on 2 April 2015. The Tribunal accepts the evidence of the respondent on this point. The photo provided by the applicant was taken on 31 March 2015 and there is no update after rectification was undertaken on this item. I refer to the evidence in Para 28 below.

28. Photo 16

This is a close-up of photo 15 the consumer’s evidence is she doesn’t know if this area is fully fixed. “It more or less had” said the consumer.

The contractor’s evidence is this was repointed around the hip.

The applicant has not satisfied the onus of proof for this defect continuing.

29. Photo 1 (annexed to Mr Wicker’s report)

The consumer states this depicts an area where the pointing is not covering the mortar. Mr Wicker’s report states “many of the areas of pointing fail to cover the existing mortar”.

The contractor agrees this is defective.

The Tribunal finds that the failure to cover existing mortar represents a lack of due care and skill and is a defect.

30. Photo 1A (annexed to Mr Wicker’s report)

The consumer states the silver corner should have been covered. The contractor disagrees with what is depicted and states the silver corner is part of the gutter not a capped tile. The contractor agrees there should be a touch more flex into the gutter.

The consumer has added a number “1A” to the report of Mr Wicker next to the following words in his report in the belief his report relies on photo 1A at this point. “The front right hip does not cover into the gutter allowing water to affect the fascia timber which I have provided photographic evidence to you. I also recommend this be fully rectified as well.”

The Tribunal places little weight on the opinion about the fascia timber as it is not possible to ascertain the basis upon which the witness has reached this conclusion from the report and he was not called to give evidence. It is not self-evident from the photo which is not labelled by the author of the report or linked by the author of the report to any particular paragraph of the report. The Tribunal finds on the evidence that more flex is required to be applied at this point into the gutter as both Mr Wicker and the contractor refer to this.

31. Photo 2 (annexed to Mr Wicker’s report)

The consumer states this shows

(i) A silicon spot on the roof and

(ii) Mortar splatter which has dried.

Mr Wicker’s report states “Numerous broken tiles that should have been replaced have been very sloppily silicone over leaving shiny marks along many areas of the roof”.

The contractor states he has restored hundreds of rooves before and this has never been a problem.

The report of Mr Wicker has one photo of silicon annexed which the applicant has numbered photo 2 on his report. The applicant was asked what was the brief given to her expert Mr Wicker and she responded “I asked him to do a roof inspection.”

There is no evidence that Mr Wicker was furnished with a copy of the quote which restricted the work which the applicant required done to

“Repoint ridge cap using flexi point system HIPS GABLES COLLARS VALLEYS”

None of the other options for roof restoration which could be selected on the quote were part of the contract between the parties. This includes options which were available on the quote and have been recommended by Mr Wicker subsequently.

The evidence does not support silicon usage other than to seal a crack which was extra functional work performed without extra charge.

The consumer’s expert’s opinion is the tiles should have been replaced. However, this did not fall within the scope of the contract “Chip tile repairs” has not been selected as an option agreed to in the quote which formed the basis of the contract between the parties.

The mortar splatter is so tiny were it not for the arrow pointing to it in the enlarged photo the Tribunal could be forgiven for missing it entirely and considered in light of the other markings on the tiles consistent with age and wear it does not represent a defect due to lack of due care and skill.

The Tribunal is not satisfied the defects complained of and shown in this photo represent an absence of due care and skill in performance of the contract.

32. Photo 3 (annexed to report of Mr Wicker)

The consumer states this depicts completed mortar works not covering edges allowing water damage into fibro. Mr Wicker states in his report “The fibro areas also required repairing or replacing but this was done as the existing mortar does not make contact with the fibro allowing for moisture and rain to rot the existing areas on contact”. Once again the report does not cross reference any particular photo by the author but the consumer has written on the report “3, 4” to indicate that those photos are relevant to the report writer’s opinion.

The consumer states the photo depicts the white fascia board and then fibro. The contractor states the cement allows him to work to the edge and if it is exposed underneath that is part of carpentry job. The fibro is the bed for the cement to sit on and the flex closes it off. The Tribunal is not satisfied that the cover proposed by the applicant represents a defect in the contracted work on the evidence before the Tribunal.

33. Photo 4 (annexed to Mr Wicker’s report)

The consumer states this is the front right roof line. The contractor gave evidence that this was rectified on 2 April 2015 as referred to in photo 14 and 15 para 27 and 28 above. The consumer’s photo was taken on 1 April 2015 and there is no further evidence that this has not been attended to. On the evidence the consumer has not satisfied the Tribunal of this claim persisting.

34. Photo 5 (annexed to Mr Wicker’s report)

The consumer states this photo depicts the front roofline showing further untidy pointing. Mr Wicker in his report recommends grinding back the front ridge lines to allow new pointing to be applied to a professional finish.

The contractor’s only comment about this photo was that the timber has dropped. It is apparent that the pointing in this photo should have a smoother finish and on the evidence the Tribunal finds it represents a lack of due care and skill.

In addition the consumer relies on the report of Mr Wicker and refers to the points raised by him which have not been previously considered when referring to the applicant’s photographic evidence above.

35. Mr Wicker states “...the pointing applied to the front hip is already cracking and peeling away” The consumer has not referred to any supporting photographic evidence. The report is dated 22 July 2015. The Tribunal is not satisfied on the evidence of this defect.

36. Mr Wicker states: “All of the gables should have been re-bedded before applying the pointing”. The report does not provide any reasons why Mr Wicker holds the opinion this is a necessity. The report does not indicate Mr Wicker was aware that the contract did not include a payment for re-bedding in part or at all. The Tribunal is not satisfied this was part of the contracted work. And the consumer did not press this part of her claim in her final submission when she said “overlooking rebedding”.

37. Mr Wicker states “Some sections of the ridge require rebedding and pointing as well. “Neither the consumer nor Mr Wicker has referred to any photographic evidence for this point within the report. The extent of the alleged defect is unclear. I refer to para 27 above when I referred to the absence in the quote of any component for re-bedding Otherwise this comment is so general as to provide little guidance on the alleged extent of pointing required on the ridge. The Tribunal is not satisfied as to which parts of the ridge Mr Wicker refers in his general statement about some sections of the ridge require rectification apart from the places conceded by the contractor and referred to specifically in this decision when considering specific photographic evidence.

38. Mr Wicker states “On the left hand side front hip the pointing on the lower half is splayed on a 45 degree angle instead of vertical and is not suitable for repointing this requires attention as well.”

Once again neither the report writer nor the consumer has provided any link to photographic evidence of this alleged defect in the report. It is not clear what observations form the basis of this opinion or what is proposed in the form of “attention”.

39. Finally Mr Wicker states “I also recommend all mortar be removed from the valleys and the tiles set professionally”.

There is no basis provided for this opinion as to why this course is recommended, no photographic evidence linked in the report or provided by the applicant and no explanation of precisely what is alleged to be defective in the valleys or how this relates to the contractor’s work.

Quantum

40. The Tribunal has found a number of breaches of the contractor’s guarantee to provide services with due care and skill. These represent breaches of Australian Consumer Law section 60 which entitle the consumer to be compensated for loss or damage suffered as a result of the contravention.

The evidence relied upon by the consumer is an estimate provided by Mr Wicker of $2,700 plus GST.

There is no itemised invoice or quote which outlines what work is included and the amounts for each element of work recommended..

As the work recommended by Mr Wicker encompasses many elements which he recommends “to complete and restore your roof to a professional standard “and these elements were clearly beyond the scope of the contract between the parties such as rebedding, replacing numerous broken tiles, and replacing fibro areas the estimation does not greatly assist the Tribunal in determining the quantum. It is roughly the same figure as that charged and quoted by the contractor for the whole job of repointing the ridge cap hips gables, collars and valleys of $2,877.60.

41. The original work and materials supplied by the contractor took 3 men for 6.5 hours approximately 19 man hours plus some extra hours performed on the first day to clean up. The contractor estimates the time to fix any rough spots to be 2 men for 20 - 25 minutes. There were a few breaches not conceded by the contractor so taking into account the established breaches in the context of the whole job and what is fair and equitable between the parties the damage is assessed at $550.00 Accordingly the consumer Meagan Tuck is to pay the contractor David Glenn White the sum of $2,327.60 pursuant to section 8 (2) (b) Consumer Claims Act by installments of $1,163.80 per fortnight first payment 9 October 2015.

J Lynch

General Member

Civil and Administrative Tribunal of New South Wales

7 October 2015

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 December 2015