Viccars v Leader Earthworks Pty Ltd - [2025] NSWCATCD 8

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Viccars v Leader Earthworks Pty Ltd [2025] NSWCATCD 8
Hearing dates: 18 March 2024; 12 August 2024; submissions to 30 August 2024
Date of orders: 14 February 2025
Decision date: 14 February 2025
Jurisdiction: Consumer and Commercial Division
Before: G Sarginson, Deputy President
Decision:
(1) The amount of $9,958.46 is not due or owing to the respondent in respect of Invoice 2027 dated 31 March 2023.
(2) The proceedings are otherwise dismissed.
(3) Any costs application is to be made by way of a party filing and serving of a miscellaneous orders application, together with all documents and submissions relied upon in the costs application. If such a costs application is made, the Tribunal will make further procedural directions regarding the filing and serving of costs submissions and documents.

Catchwords:
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – jurisdiction – whether work involves residential building work – breach of statutory warranties – whether breach and damage established – whether rectification work necessary and a reasonable course to adopt – payment of invoice – whether respondent entitled to payment

Legislation Cited:
Australian Consumer Law 2010 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Fair Trading Act 1987 (NSW)
Home Building Act 1989 (NSW)
Home Building Regulation 2014 (NSW)

Cases Cited:
ACCC v Dataline.Net.Au Pty [2007] FCAFC 146; (2007) 244 ALR 300
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158
DB Homes Australia Pty Ltd v Kes [2019] NSWCATAP 221
Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185
Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159
Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273
G v H [1994] HCA 48; (1994) 181 CLR 387
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Gordon & Gotch Australia Pty Ltd v Horwitz Publications Pty Ltd [2008] NSWCA 257
Grygiel v Baine & Ors [2005] NSWCA 218
John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60
Karpik v Carnival PLC [2023] FCA 1280
Khan v Kang [2014] NSWCATAP 48
Kontaineroo Pty Ltd v Slaveski [2024] NSWCATAP 264
Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23
Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243
Leung v Alexakis [2018] NSWCATAP 11
Llamas v Rockwall Constructions Pty Ltd; Rockwall Constructions Pty Ltd v Llamas [2019] NSWCATCD 75
Metricon Homes Pty Ltd as trustee for Metricon Unit Trust v Lipari [2024] NSWSC 566
Mills v Walsh [2022] (NSWCA 255),
Morgan v Pitch Perfect Constructions Pty Ltd [2024] NSWDC 235
Paraiso v CBS Build Pty Ltd [2020] NSWSC 190
Re Day [2017] HCA 2; (2017) 340 ALR 368
Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51
SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10
Shakiri v Holland [2024] NSWCATAP 28

Texts Cited:
None cited

Category: Principal judgment
Parties: Jodie Viccars (Applicant)
Leader Earthworks Pty Ltd (Respondent)
Representation:
J Viccars, self-represented (Applicant)
Solicitors:
CJM Lawyers (Respondent)

File Number(s): 2023/00390333
Publication restriction: Nil

REASONS FOR DECISION

This is a dispute involving works to “upgrade a driveway” leading from a public road to a farmhouse located in northern New South Wales. The property is rural.
The length of the driveway (or road) is approximately 2,800 m.
The applicant is the owner (or co-owner) of the farm. Throughout the proceedings, she was self-represented and appeared at various hearings with her partner Mr Fabbro.
The applicant and Mr Fabbro operate a business under the name “Woodland Valley Farm.”
The respondent was, for part of the proceedings, legally represented by Mr Lucas, Solicitor, of CJM Lawyers.
The respondent is the company who performed the works, which relevantly involved earthworks, drainage, laying of roadbase, and grading. The driveway surface was changed from dirt to recycled asphalt, although part of the complaint of the applicant is that the current surface is not completely recycled asphalt.
A number of the relevant interactions involved Mr Fabbro and Mr Immisch, a director of the respondent.
In April 2021, there were discussions between Mr Fabbro and Mr Immisch regarding construction of the driveway. Mr Immisch attended the property for inspection.
On 27 April 2021, the respondent provided a written quotation. The scope of works contained in the quotation was as follows:

Driveway to be stripped of organic materials approximately 6 m in width.
All soft areas to be excavated out to a firmer base.
Add rock sheeting if required otherwise filled with good general fill.
Clear topsoil from the ridge line A as seen in map. Load out would fill materials and cart out to bog poles and bring back to natural road height.
Fill road approximately 400-500 mm compact and proof roll flat.
Cut spoon drains.
Place recycled asphalt on road base.
Place rocks in creek crossings.

The estimate of the cost of the work was $96,204.10. The quotation referred to the works:

Being completed within approximately two weeks, subject to availability of materials.

Payment for all materials prior to commencement.

Rates are subject to change from suppliers.

Any costs outside the quotation would be by prior approval by the owner or contact person. The contact persons were identified as the applicant and Mr Fabbro.

Mr Fabbro accepted the quotation on behalf of the applicant by telephone.
On 8 July 2021, the applicant pay the respondent a payment of $24,060.03. According to the respondent, this was a deposit.
In early July 2021, the respondent commenced work. Certain works were performed in the period between about 9 July 2021 and 27 July 2021. Various works continued on until late 2022.
There are factual disputes between the parties regarding the precise terms of the contract; whether there were variations to the contract; and the nature of the works performed.

The Procedural History of Matter

The applicant commenced proceedings in the Tribunal on 11 June 2023 as a “consumer claim” (i.e. a claim brought under Part 6A of the Fair Trading Act 1987 (NSW) (the FT Act) rather than a claim brought under the Home Building Act 1989 (NSW) (the HB Act)).

The Application and Its Assertions

The applicant sought orders that she (a) not have to pay the amount of $9,958.46 and (b) the respondent to provide work or provide services to the approximate value of $25,455. The works sought are identified as follows:

“Create a firmer base on our road, compact and roll it and finish with 100 mm of recycled asphalt. At completion, the road should be clearly defined, with a clearly defined edge and be 500-600 mm above the ground height and tidy up road formation with topsoil.”

The application asserts, in respect of the invoice of $9,958.46, that the works “would not have been required if the job had been performed correctly initially when all the machinery was on-site”.
The application states that the applicant had paid the respondent $89,771.66 to date (by way of payments on 8 July 2021, and 3 April 2022). It is asserted, that the works performed by the respondent were not satisfactory. The application asserts that the road was “effectively a dirt track, as it was before,” with “boggy patches,” and is “rutted;” “uneven”; “devoid of recycled asphalt;” and “has no defined edge.”
The application asserts that between July and September 2021 there was “well below average rainfall”, and the applicant had been requesting the respondent complete works “from 10 August 2021”. The applicant asserts that works performed by the respondent in October 2021 and December 2021 were inadequate.
The application refers to the respondent’s assertion that damage to the road and failure to complete works was due to traffic on the road. It is asserted that the respondent “was aware about vehicle requirements and confirmed they would not be a concern.” The respondent allegedly “advised the trucks should not turn their wheels sharply on the road,” and the applicant had “ensured that this has not occurred.” The application further asserts that “every 2-3 weeks one feed truck attends the farm on a Wednesday for one trip each way”, and the applicant “disputes” that the amount of traffic has damaged road.

Procedural History of Matter in the Tribunal

On 3 July 2023, the matter was listed for a conciliation and group list (hearing) at the Tribunal. The applicant appeared, as did Mr Kuburic, an employee of the respondent. The name of the respondent was amended from Mr Immisch to the contracting party, Leader Earthworks Pty Ltd. Procedural directions were made for the filing and serving of documentary evidence by the parties and the matter was set down for a special fixture hearing. The procedural orders do not refer to the applicant being granted leave to file and serve an amended application.
On 10 July 2023, the applicant wrote to the Tribunal proposing to amend the application seek the following orders:

The applicant not have to pay the amount of $9,958.46.

The respondent pay the applicant “the amount quoted by L. Booth Earthmoving of $122,430 to have the disputed works completed by this contractor”.

The matter was listed for hearing at the Tribunal on 16 August 2023. However, it was adjourned by consent, prior to the hearing date, as the applicant had pre-booked an overseas holiday and would be overseas on 16 August 2023.
On 11 October 2023, the proceedings were listed for a special fixture hearing the Tribunal. The applicant appeared and a representative of the respondent appeared. The Tribunal Member did not hear the case, but adjourned it.
No reasons were given for the adjournment. However, when the procedural directions are analysed, it is clear that the matter was adjourned to give the applicant a further opportunity to clearly set out the case, and provide relevant documentary evidence.
The procedural directions directed that the applicant file and serve Points of Claim; the respondent file and serve Points of Defence; and the parties to file and serve documentary evidence.
In respect of expert reports, it was directed that any such reports should comply with NCAT Procedural Direction 3 for expert evidence (i.e. the NCAT expert witness Code of Conduct). Further, the parties were directed to make all witnesses (including expert witnesses) available for questioning at the hearing.

Applicants Points of Claim

The Applicant filed Points of Claim dated 14 October 2023. The Points of Claim contain a narrative of various alleged factual events, interwoven with references to causes of action.
The causes of action identified within that document are as follows:

Breach of the consumer guarantees provisions of the Australian Consumer Law 2010 (NSW) (ACL) in respect of:

Failure to provide services with due care and skill.

Failure to provide services fit for purpose.

Failure to provide services within a reasonable period of time.

Breach of the statutory warranties in s18B of the HB Act in respect of:

Failure to do work with due care and skill and in accordance with the plans and specifications set out in the contract.

Failure to complete work within the time stipulated in the contract, or if there was no time is stipulated, within a reasonable period of time.

Failure to provide materials used in the work that are reasonably fit for the specified purpose or result.

The Points of Claim contain a number of “contentions.” Such “contentions” are summarised as follows:

Failure to Provide Services within a Reasonable Period of Time

The respondent knew the condition of the road; the land; and the use that the applicant would have for the upgraded road prior to entering into the contract.
The respondent’s quote (which formed the terms of the contract) were that the works would be completed within 2 weeks.
The respondent was not on-site in the period between 22 July 2021 and 9 September 2021. Other than 4 mm of rain on 24 July 2021 there was no rain from 16 July 2021 to 9 August 2021.
The respondent knew, or should have known, that recycled asphalt must be applied immediately to a prepared road surface. Any delay in time would undermine the foundation. Recycled asphalt must be applied to a completely dry, flat and compacted surface.
When the respondent returned to site on 9 September 2021 it was to “merely add road base to attempt to mitigate the ongoing degradation to the unsealed road”. It was the respondent’s obligation to source recycled asphalt, and the respondent should not have entered into the contract unless it could source the materials.
The applicant agrees that the respondent returned to site on 6 October 2021 “to again add more road base and reshape the road”. However, the applicant asserts that the works should have already been completed, and there was no contractual basis for the delay.

Failure to Provide Services with Due Care and Skill

When the respondent attended the site to lay the recycled asphalt on 19 October 2021, the road was “rutted and wet with boggy patches”. The applicant relied photographic evidence regarding the condition of the road in the period between 14 and 19 October 2021. 88 mm of rain had fallen in the week prior to 19 October 2021, and a further 19 mm of rain fell on that day.
A builder exercising due care and skill would not have laid the recycled asphalt in wet conditions.

Failure to Provide Services That Are Fit for a Specified Purpose

On or around 22 December 2021, the respondent returned to site and stripped the remaining recycled asphalt and blended it with the base material. The applicant refers to an email from Mr Immisch of the respondent dated 24 March 2022 that refers to such works.
This action “contaminated the recycled asphalt, rendering it useless for its intended purpose.”
By “contaminating” the recycled asphalt, the respondent damaged the road. This caused the road to be unfit for its intended purpose. The applicant relies on its expert report regarding this issue.
The driveway works are not complete, because they cannot be used for their intended purpose.

The Orders Sought

The Points of Claim state that the applicant seeking the following orders: –

The respondent pay the applicant $109,037.50 for the cost of rectifying defects and completing work. In essence, the proposed work involves a complete rebuild of the road and associated drainage/earthworks.

The applicant not have to pay the amount of $9,958.46 in respect of invoice 2027 of the respondent.

The applicant “has no further financial responsibility to the respondent relating to this contract.”

Points of Defence

The respondent filed and served Points of Defence dated 24 November 2023 (filed on 27 November 2023). That document is also in a narrative form that contains references to factual events. Those events are referred to in an affidavit of Mr Immisch dated 24 November 2023.

Hearing on 4 December 2023

The matter was listed for hearing at the Tribunal at the Murwillumbah on 4 December 2023. At that hearing, the applicant and her partner appeared in person. Mr Kuburic appeared for the respondent.
Notably, Mr Lucas, Solicitor, was briefly present at the Tribunal hearing but did not speak to the Tribunal, and the respondent did not seek leave to be legally represented on 4 December 2023.
The respondent made an adjournment application. Ultimately, the adjournment application was granted. The main reason for this was that the applicant’s expert, Mr Wilson, resided in Victoria, and had been granted leave to be questioned at the hearing by audiovisual link. However, there were no audiovisual link facilities at Murwillumbah Courthouse. Further, Mr Immisch was not present at the hearing, and was also only available on that day for questioning by audiovisual link or telephone.
The Tribunal noted that neither party sought to file and serve any further documentary evidence. The applicant relied on the expert report of Mr Wilson. The respondent did not seek to obtain an expert report in response to Mr Wilson’s report, and sought to rely upon the affidavit of Mr Immisch dated 24 November 2023, and documents attached to that affidavit. The applicant sought to cross examine Mr Immisch. The Tribunal also made procedural directions to deal with any application for leave for legal representation by the respondent under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
The matter was then listed for hearing at the Tribunal in Sydney on 18 March 2024, with both parties granted leave to appear by audiovisual link.
In February 2024, there was an application by the applicant to have the respondent’s proceedings (which are referred to later in this decision) heard separately to the applicant’s proceedings. The applicant also raised the serious issue of alleged contempt by the respondent. That application was refused on 26 February 2024, with written reasons provided. The reasons include reference to (a) a failure of the respondent to seek leave to be legally represented; and (b) an application for orders regarding contempt could not be dealt with by the Tribunal in the same set of proceedings, but rather needed to be dealt with by way of a separate application under s 73 of the NCAT Act.

Hearing on 18 March 2024

At the hearing on 18 March 2024, the applicant and Mr Fabbro appeared. Mr Lucas, Solicitor, appeared for the respondent with the respondent’s director Mr Immisch. The respondent had not sought leave to be legally represented in accordance with the Tribunal’s procedural directions. The first time in the proceedings is that the respondent sought leave to be legally represented was at the hearing on 18 March 2024.
The applicant opposed the application for the respondent to be granted leave for legal representation. However, the Tribunal determined that it was appropriate to grant the respondent leave to be legally represented under s 45 of the NCAT Act, because of the quantum of the amount claimed, or in dispute, in the proceedings and the complexity of the legal and factual issues.
At the hearing on 18 March 2024, the documentary evidence that both parties relied upon was admitted into evidence, subject to weight and relevance. The applicant was cross-examined by the respondent’s legal representative. The applicant expert witness, Mr Wilson, was cross-examined. Mr Immisch was cross-examined by the applicant. As the allocated hearing time expired prior to the conclusion of cross examination of Mr Immisch, the hearing was part heard.

Hearing on 12 August 2024

The hearing concluded on 12 August 2024. At that hearing, the applicant concluded her cross examination of Mr Immisch, and he was re-examined by Mr Lucas. The respondent also, briefly, raised a potential application to produce further evidence from a witness, Mr Hill. However, that application was not pressed.
At the conclusion, the Tribunal made procedural directions for each party to provide written closing submissions. The applicant filed submissions in chief (13 pages) on 22 August 2024. The respondent filed written submissions in chief (9 pages) on 30 August 2024 (the submissions were dated 26 August 2024).

The Respondent’s Tribunal Proceedings

On 13 February 2024, the Respondent commenced proceedings in the Tribunal against the applicant seeking payment of $9,958.46 in respect of Invoice 2027 dated 31 March 2023. The dates identified in the invoice involved works on 2 November 2021; 23 March 2023; and 24 March 2023.
On 18 March 2024, the respondent’s proceedings were dismissed under s 55 (1)(a) of the NCAT Act as the respondent withdrew the proceedings. The Tribunal noted that the respondent’s legal representative withdrew the proceedings on the basis that the respondent argued that works performed were not residential building works under the HB Act, and the Tribunal did not have jurisdiction under Part 6A of the FT Act for a supplier of services to bring a claim for debt recovery. The respondent maintains that the proceedings do not involve residential building work under the HB Act. For reasons that will be elaborated upon later in this decision, the Tribunal is satisfied that it has jurisdiction under the HB Act.

Documentary Evidence of the Parties

Applicant

The Applicant had filed and served bundles of documents on three separate occasions (19 July 2023; 31 July 2023; and 3 November 2023).

Documents Filed on 19 July 2023

The documents were as follows:

Quotations of the respondent dated 27 April 2021 and 6 July 2021. On 27 April 2021, the respondent emailed a quotation that contained a scope of works, and noted that “the issue is current road material is waterlogged and of poor quality. The current road is lower that the surrounding ground level and has no drainage. Water running off hills and straight onto road.” The scope of works states that the rates are “subject to change by suppliers,” and the duration of the works is “approximately 2 weeks”. In respect of the use of recycled asphalt, the quote states “approx. volumes to give 100 mm cover”. The quote was sent with a covering email by Mr Immisch that states the quote “is an accurate estimate to complete the job properly so the road should not blow out again.” The document dated 6 July 2021 states that the work is an “estimation of cost to complete project, any cost outside this quote will be prior approval by the land owner or contact. The applicant and Mr Fabbro are listed as “contact persons.” The quote of 6 July 2021 does not contain any different scope of works to the quote of 27 April 2021.

Tax invoices of the respondent dated 6 July 2021; 25 February 2022; and 28 March 2022.

Extract from the respondent’s website, describing the services provided by the respondent.

Quotation of L Booth Earthmoving (Undated). The quotation was to prepare and seal 2850 m² of “bitumen driveway” at a cost of $111,300 plus GST (total cost $122,430). The quote does not refer to recycled asphalt, but rather “2 coat Bitumen seal”.

Quotation of Garbett’s Excavations dated 4 July 2023 in respect of “fill soft areas with crushed rock; trim up existing driveway approx. 900 m long; top with 20 mm road base; spread, water and rolled to prep ready for spray seal” and a cost of $37,815 plus GST (total cost $41,596.50). There is no reference in that quote to what materials are involved in “trim up existing driveway” nor “top with 20 mm road base”. The quotation does not contain a detailed scope of works.

Quote of Pacific Bitumen dated 6 July 2023 in respect of “supply and spray a 2 x coat hot bitumen seal of 2,800 m at $16.50 per metre too farm roads” in the amount of $46,200 (inclusive of GST). Notably, that quote does not refer to using recycled asphalt as the surface, but 2 coats of “hot bitumen seal”. There is also no detailed scope of works in the quote.

A “timeline” of events between 27 April 2021 and 22 March 2023.

A series of photographs of the road in the period from 6 May 2021 to 28 April 2023 at various dates.

A series of emails between the applicant and the respondent in the period from 6 May 2021 to 7 December 2023.

Extracts from the Bureau of Meteorology website listing rainfall the months of January – December 2021 at North Murwillumbah (Tweed River).

A 1 page document headed “Border Restrictions Direction” in the period from March 2022 to August 2021. The document simply contains links to other documents in respect of “border restrictions direction.”

Extracts from various websites, including the ACCC and law firms regarding consumer guarantees under the ACL; contractual principles; and principles regarding quantification of loss.

And extract from the website of Carter Newell Lawyers in December 2007 regarding insurance law authorities dealing with the meaning of “damage” and “physical damage”.

An extract from a website regarding the differences between “recycled asphalt millings” and gravel.

Documents Filed on 3 November 2023

Two documents were filed on 3 November 2023 in addition to the applicant’s Points of Claim, referred to previously.
The first was an expert report of Mr Paul Wilson (29 pages), which is undated.
The second was a statutory declaration of the applicant dated 1 November 2023.

The Report of Mr Wilson

The report of Mr Wilson commences by briefly setting out relevantly, that he has been “in the civil and construction industry for 33 years” and founded Eastern Plant Hire which “is currently one of the largest truck and plant suppliers to major infrastructure projects across Eastern Australia with over 1000+ units operating each day”.
Mr Wilson asserts that his report had been “prepared in accordance with NCAT Procedural Direction 3 which includes the Expert Witness Code of Conduct”. Mr Wilson states that he had read, and agrees to be bound by the code which is annexed in Appendix A of this report. However, the Expert Witness Code of Conduct attached the report (at page 14) only attaches clauses 13-18 of the Code; and not the full Code.
At paragraph 2.1 of the report, Mr Wilson sets out the “background,” based upon the instructions he received from the applicant. At paragraph 3, Mr Wilson sets out the “purpose of the report”. The purpose of the report was for Mr Wilson to comment on various issues, including whether the respondent was suitably licensed; whether the works were defective; the method of rectification; and the reasonable cost of rectification.
At paragraph 4, Mr Wilson sets out his methodology. Included in that methodology is the following comment:

“This report details observations forward/opinions based on facts and assumptions of fact and includes reasons and documented evidence for each opinion expressed. In compiling observations forward/opinions I have commented on only the matters requested of me through my instructions by the owner.”

At paragraph 5, Mr Wilson sets out the “documents forwarded/information” he was provided by the applicant. Included in those materials are “supporting documents” of the applicant and respondent, but those documents are not listed. There is reference to “videos the site through and following construction.” However, specific details of those videos, and a description of the contents of those videos, are not identified.
At paragraph 6, Mr Wilson gives a “description of the site works”. He states:

“My opinion is based on the ample information that has been made available to me by the owner.”

At paragraph 7, Mr Wilson refers to his “assumptions”. Those “assumptions” (including legal conclusions that the works to the road are residential building work under the HB Act, and that the statutory warranties under the HB Act are applicable to the works) are said to be based on “perusal of all documents made available to me.”
At paragraph 8, Mr Wilson sets out his “summary of findings, opinions and conclusions”.
Notably, at various points in paragraph 8, Mr Wilson refers to his “inspection” and “inspection of the supporting documents”. However, he does not identify in the report if, and when, he inspected the property and viewed the road, nor any measurements or tests performed on the road and associated drainage/earthworks.
Mr Wilson refers specifically to various reported breaches of statutory warranty under s 18B of the HB Act at pages 6-10 of his report.
In regard to breach of statutory warranties, he opines as follows:

Work Done With Due Care And Skill And In Accordance With The Plans And Specifications Set Out In The Contract (s 18B (1)(a) HB Act)

The respondent knew the site was “extremely boggy” before commencing work. The quotation supplied by the respondent included “recycled asphalt laid to give 100 mm cover to a prepared surface”. The prepared surface, according to the specifications, was to include 400 – 500 mm fill compacted and proof rolled.
Recycled asphalt is a final cover to a prepared surface which “must be applied immediately” and any delay will “undermine the foundation.” Recycled asphalt must be applied to “a completely dry, flat and compacted surface.”
The respondent laid the recycled asphalt on 19 October 2021, with the surface prepared between 8 July 2021 and 22 July 2021, and with “some additional road base added on occasion following preparation of the foundation”. There was 88 mm of rainfall recorded between 12 October 2021 and 15 October 2021, and 19 mm of rainfall on 19 October 2021, according to the Bureau of Meteorology Daily Rainfall for North Murwillumbah, in a document provided by the applicant.
Mr Wilson had “reviewed photographs and videos from 14 October 2021 and 19 October 2021”; and “sufficient rain had impacted the site to the extent that the surface of the road could not be considered prepared for the recycled asphalt to be laid”.
The respondent had “failed to correctly prepare and dewater and stabilise the subsurface of the road for recycled asphalt.”
There was (on the basis of photographic evidence provided by the applicant) water pooling “directly adjacent to the road” and there had been “deterioration of the road.” The respondent had failed to “construct adequate drainage and laying the recycled asphalt in wet conditions has resulted in water ingress into the substructure of the road.” This caused “failure of the recycled asphalt.”

Work Done with Due Diligence and within the Time Stipulated in the Contract or If No Time Is Stipulated in a Reasonable Time (s 18(1)(d) HB Act)

Mr Wilson asserts that the time stipulated in the contractual documents (the quotation) was two weeks to complete the work, and the work had clearly not been completed within that time. No formal extension of time had been requested by the respondent. There was not sufficient rain in the period from 9 July 2021 to 22 July 2021 to cause delay in the work. The failure of the respondent to complete the work caused the road surface to be “exposed to weather and traffic” for 10 weeks and 6 days until the contractor returned to site on 6 October 2021 to reshape the road, and a further 1 week and 6 days until “the recycled asphalt was laid over a soft subsurface”.
The works have not been completed within the time stipulated, or within a reasonable period of time.

Materials Reasonably Fit for the Specified Purpose or Result, if the Person for Whom the Work Is Done Expressly Makes Known the Particular Purpose for Which the Work Is Required or the Result Desired to Achieve (s 18B(1)(f) of the HB Act)

The foundation was wet and due to defective drainage water was pooling directly adjacent to the road on 19 October 2021 when the recycled asphalt was laid.
The driveway does not have a cover of 100 mm of recycled asphalt, as documented in the plans and specifications along with poor subsurface preparation.
Blending the recycled asphalt with the base material contaminated the recycled asphalt, rendering it unfit for the specified purpose or result.
The applicant made known to the respondent prior to the works commencing that the applicant wanted a recycled asphalt driveway, the specified purpose or result being to reduce dust. The works did not achieve that outcome or result.

Further Assertions As to Why the Road/Driveway Is Defective

At pages 9 – 10, Mr Wilson raises other matters, which partly are a summary of his earlier opinions. He asserts follows:
The quotation includes spoon drains in the scope of works. Spoon drains were not constructed, but there are some drains. However, the drainage constructed does not adequately divert water from the road. Table drains should have been constructed running adjacent to the road formation, to collect water and run-off from the road surface and overland flow. Water pooling adjacent to the road causes damage to the road.

Conclusion and Scope of Works to Rectify

Mr Wilson concludes as follows (at pages 10 – 11 of his report):

“In my opinion, due to the compounded nature of the deterioration of the road, the inability to determine the quality of the compaction of the substructure, the varying degree of crown slope, and the inadequate drainage, it is necessary to perform major rectification works prepare the road for the surface cover of 100 mm of recycled asphalt.
The reason that major rectification works are reasonable and necessary is that presents the most economical solution. Anything less will result in a repeat of the current defects.”

Mr Wilson provides a scope of works. That scope of works could be more detailed, and there is reference to the various quotations obtained by the applicant (including the quotation of L Booth Earthmoving). In essence, Mr Wilson asserts that the road needs to be rebuilt with a cover of recycled asphalt, and table drains installed. He asserts that the cost of such works is $109,037.50 inclusive of GST.

Cross Examination of Mr Wilson at the Hearing

At this juncture, it is appropriate to refer to the cross examination of Mr Wilson at the hearing. As discussed previously, Mr Wilson appear by audiovisual link.
The cross examination relevantly included the following information:
Mr Wilson was a friend of the applicant, and had known her since she was a teenager.
Mr Wilson had not attended the site and performed his own inspection or any tests. Rather, he based his opinion on his own experience, and information received from the applicant. He stated that during the course of the respondent’s works, the applicant had video called him by Face Time and showed him how the works were progressing. He had expressed his view to the applicant contemporaneously that the works were not being done with due care and skill.
Mr Wilson’s experience in the construction of roads comes from his background operating a large business in Victoria involving plant hire. He stated he was now retired, but remained a shareholder in the company. According to Mr Wilson, his company was involved in subcontracting work in Victoria constructing “big” roads and driveways. Mr Wilson’s original qualifications were as a plumber.
Mr Wilson maintained that he has sufficient expertise, and sufficient information, to opine that the works were defective. He continued to maintain that the driveway had been originally constructed in inappropriately wet conditions; and that inadequate drainage had been installed.

Statutory Declaration of the Applicant

Much of the statutory declaration of the applicant dated 1 November 2023 involves a mixture of factual matters and legal submissions. Legal submissions are an argument, rather than evidence of factual events. However, there is reference to the following factual events:

The quotations and scope of works of the respondent.

The respondent had knowledge of the conditions of the area by reason of what is set out in the quotation of 27 April 2021, and the information contained in the statutory declaration of Mr Immisch dated 25 July 2023.

In an email of Mr Immisch dated 6 May 2021 to the applicant, it was asserted by Mr Immisch that it would be “fine” to run “truck movements” on the driveway/road every week, and at worst the top layer of recycled asphalt would get “a bit screwed up” if the vehicles drove too fast. That email states as follows:

“Hi Fabion,
Just to clarify a couple of the questions yesterday.
The driveway I have priced would be fine to run the truck movements on every week and not damage it, at the worst the top layer of recycled asphalt would get a bit screwed up if the drive too fast before it has time to bind up.
However while we were building the new road it would not be ideal for the trucks to be driving on it.
When leaving the site yesterday we drove into some of the boggy areas and the base seems OK, I think you could proceed with the works sooner than expected as long as the fill material on the hill is dry.”

Other than 4 mm of rain on 24 July 2021, there was no rain from 16 July 2021 to 9 August 2021.

The respondent “added road base in an attempt to mitigate the ongoing degradation to the unsealed road.”

The respondent returned to site on 6 October 2021 to “add more road base and reshape the road”.

The road on 19 October 2021 was “rutted and wet with boggy patches”, as evidenced by photographs.

After the recycled asphalt was laid on 19 October 2021, it deteriorated due to “water ingress” and the recycled asphalt began to “blend in with road base”.

On about 22 December 2021, the respondent returned to site and “stripped the remaining recycled asphalt and blended it with the base materials as advised from an email from Phil Leader (sic) on 24 March 2022”.

When the respondent blended the recycled asphalt the base material it damaged the road, and the recycled asphalt was never replaced. Since around 22 December 2021 there are only two areas approximately 10 m² each near the two creek crossings that have any recycled asphalt as road cover.

Affidavit of the Applicant

The applicant’s affidavit of 4 January 2024 also contains a mixture of submissions and reference to factual events.
Much of the affidavit is reply to the affidavit of Mr Immisch dated 4 December 2023, which will be referred to later in these reasons.
The applicant accuses Mr Immisch of “misrepresentations” in his affidavit. The applicant refers to her occupation in the affidavit as “farmer.”
However, the following relevant factual events are referred to:
The quote provided by the respondent did not refer to materials being “subject to availability.”
On 16 July 2021 Mr Immisch sent a text message to Mr Fabbro stating, “this is good weather to dry it all out”.
The road/driveway “leads to a house.” That house is occupied by the applicant and Mr Fabbro.
There was “zero rain” between 6 July 2021 and 8 July 2021.
The road “was in the same condition, wet and boggy, on 9 July 2021”.
When the COVID border restrictions existed, at relevant times prior to 12 August 2021 there was border zone which allowed entry for a permitted purpose; and after 12 August 2021 that was amended to allow access to perform “essential work”.
It was the respondent’s responsibility to not commence the works unless it could source the recycled asphalt in a timely manner. Recycled asphalt was not supplied until 14 October 2021.
Certain photographs in the affidavit of Mr Immisch were taken on 17 July 2023 at a site visit involving the respondent, not between 28 October 2021 and 23 November 2021.
Although there was flooding to the applicant’s farm in February 2022, this was “localised the inner area”.
The driveway leads from the public road to the applicants house, not to any livestock structures.
The applicant conducts a “small farming business” involving egg production, and does not generate extensive “commercial traffic.”
The respondent’s works arose from a Development Consent issued by the local Council on 13 June 2019 to convert a shed to a dwelling. The applicant attached a partial copy (only page 2) of the Notice of Determination of a Development Application. The applicant also attached a copy of the local councils “driveway access to property” policy available on the local Council website.
According to the applicant, the material relied upon from Boral contained in Mr Immisch’s affidavit did not support a conclusion that the recycled asphalt was not available until after October 2021.
The respondent did not take measures to source recycled asphalt from anyone other than Boral.
The applicant was “coerced” and “misled” into allowing the respondent to return to site to perform additional works.
When works were performed in October 2021, the road was “significantly wet”, as supported by the Bureau of Meteorology records.
The additional works in November 2021 and December 2021 have “contaminated” the road base.
The respondent had represented that it would be “fine” to “run the truck movements on every week and not damage it” before the works were completed.

Respondent’s Documentary Evidence

The respondent’s bundle of documents filed on 31 July 2023 has been referred to previously.
That bundle contains a brief statutory declaration of Mr Immisch dated 14 July 2023. Although the respondent primarily relied upon the evidence of Mr Immisch in his affidavit of 24 November 2023, the brief statutory declarations of Mr Immisch and Mr Hill still form part of the evidence.

Statutory Declaration of Mr Immisch Dated 14 July 2023

Mr Immisch asserts that when he met with Mr Fabbro on 16 April 2021, the driveway was “extremely boggy and needed to engage four-wheel-drive to safely access property”. Mr Fabbro asked if the respondent could repair the road. There were discussions. Mr Fabbro sought the road be structured of recycled asphalt. According to Mr Immisch, he informed Mr Fabbro that such material was “hard to come by” and the only place he had purchased it previously was from the Boral quarry in Burleigh Heads, Queensland.
According to Mr Immisch, Mr Fabbro asked for a written quote. According to Mr Immisch he stated that he could not give quote at that time as there were “many variables.” A quotation was ultimately sent on 27 April 2021. Mr Immisch states that at this time, Mr Fabbro had not given the “go ahead” for the respondent to commence works.
In June 2021, Mr Fabbro telephoned Mr Immisch about a start date, and the parties subsequently met on-site. According to Mr Immisch he spoke to Mr Fabbro and the applicant and “ran through my estimation of the project.” Mr Fabbro stated that the respondent’s quote was higher than other quotes obtained by Mr Fabbro and the applicant. Mr Immisch responded that the reason was that the respondent was installing recycled asphalt and the road was being built up so that it was higher than the existing ground. According to Mr Immisch, he stated the quote was an “estimation” that could change if conditions were not as anticipated. Mr Fabbro “agreed and booked” the respondent.
Work commenced on 5 July 2021. The “first creek crossing” required “extra work to fix so traffic could pass through.” The additional cost was “discussed” with Mr Fabbro.
Delays were caused by “periods of wet weather.”
According to Mr Immisch, Mr Fabbro, after commencement of the works, wanted “pipes and concrete blocks to help hold (the) creek together,” which added time and cost to the completion of the work.
Recycled asphalt was due to be laid in July 2021. However, it was not available due to the “quarry” advising they “no longer had any for sale” and “the border had closed.” Mr Immisch told Mr Fabbro that the respondent could not source recycled asphalt. Mr Fabbro stated he did not want anything else. Mr Immisch stated that the respondent would “need to put something down on the road to be able to use it” and Mr Fabbro “agreed to put a thin layer of roadbase down.”
On 14 October 2021, Mr Fabbro texted Mr Immisch in respect of whether the recycled asphalt was now available. Mr Immisch “checked with the quarry” and it was available. According to Mr Immisch, the road was “finished at the end of November” with some “some minor cleaning up drains to be completed outside of the road footprint and some other work and changes requested by Fabian.”
The statutory declaration of Mr Immisch is significantly less detailed that his affidavit, and the Tribunal gives it little weight in comparison to the affidavit. Further, it does not deal with events after October 2021.

Statutory Declaration of Andrew Hill Dated 14 July 2023

Mr Hill is an employee of the respondent. He provided a brief statutory declaration. He asserts that when the site was first viewed all paddocks were “holding water” and there was poor drainage. He asserts that works were delayed due to poor weather, and that when it rained the paddocks would flood.
Little weight is given to the statutory declaration of Mr Hill. It is brief and lacks a detailed version of relevant factual events.

Affidavit of Mr Immisch Dated 24 November 2023

This affidavit comprises a total of 106 pages. It contains detailed account of factual events from the perspective of Mr Immisch. There are text messages; emails; photographs; receipts from suppliers and other documents attached.
In summary, Mr Immisch’s version of events is:
The quotation was “only an estimation.”
The respondent arrived on site on 5 July 2021. The ground was “very wet” and work could not commence on that day. It rained until 8 July 2021. The road was “flooded.”
Works commenced on 8 July 2021. Between 9 July 2021 and 27 July 2021, works were performed, but there were “delays” due to the weather; additional work being required to the road near the “first creek crossing”; Mr Fabbro wanting “additional pipes, more rock and concrete blocks” to creek crossings; and Mr Fabbro instructing the respondent “not to dig the drains too big or complete one of the drains out in the paddock because he had just seeded it”.
On or around 27 July 2021, Mr Immisch told Mr Fabbro that recycled asphalt was not available from Boral Concrete (due to COVID 19 border restrictions) and offered to finish the road using a “road based material sourced in NSW”. Mr Fabbro insisted that recycled asphalt be used.
On 10 August 2021 Mr Immisch met with Mr Fabbro on site. He asserts that Mr Fabbro agreed to the following:

Road base material be placed on the road as a temporary measure so the road could be used, and to protect the road base which would otherwise be exposed to damage from rain.

The cost of the road base could be deducted from the “allowance” towards the recycled asphalt if the applicant “wanted to say in budget.”

Mr Immisch asserts that he told Mr Fabbro he “could not guarantee” the temporary road base material would be suitable for heavy traffic; and grooves and holes would have to be fixed in the future due to heavy traffic. As discussed previously, the applicant denies this was said, and asserts that Mr Immisch did not say the temporary road base material could not withstand heavy vehicle traffic. However, Mr Fabbro did not give evidence. The position of the applicant on that issue is based on her understanding of what was said between Mr Immisch and Mr Fabbro.
Between 9 September 2021 and 10 September 2021 the respondent was on site performing the works to a creek crossing. Mr Immisch’s affidavit attaches the following text exchange between Mr Immisch and Mr Fabbro between 7 and 8 September 2021:

Immisch: “Hi Fabian, we are going to be back in tomorrow to complete tidy up works hopefully its dried out enough from the rain. Hope this is OK? Cheers.
Fabbro: “Perfect! Hey Phil would we be able to the same thing at the crossing closest to the house that you’ve done the first Crossing? Two pipes, cement blocks and rock over the top.”
Immisch: “Yeah no worries.”
Fabbro: “Hey mate rain coming next week I just need to chat about erosion control on the first Creek Crossing.”
Immisch: All good to do mate just spoke to the boys it will be out of the way.”

Between 18 September 2021 and 17 October 2021 the Queensland government slightly modified COVID 19 border restrictions.
On 6 October 2021, the respondent returned to site to grade the road; supply additional road base material; and complete work on the creek crossings.
On 14 October 2021, Mr Immisch telephoned Mr Fabbro to inform him recycled asphalt was now available.
On 17 October 2021, border restrictions between NSW and Queensland were lifted.
The respondent returned to site between 18 October 2021 and 27 October 2021 and performed works that relevantly involved the laying and compacting of the recycled asphalt. The grading of the road occurred on 6 October 2021. The “additional” creek crossing works were performed. The road was “re-graded” after a “light shower” of rain.
When, or soon after, the October 2021 laying and compacting of recycled asphalt occurred, Mr Fabbro requested, and the respondent supplied, additional recycled asphalt for to be stockpiled for “routine maintenance”.
On 27 October 2021, the respondent returned to site to “top up” any areas of recycled asphalt.
On about 27 October 2021, Mr Immisch telephoned Mr Fabbro to inform him that the works were substantially complete, save for “tidying up of drains, culverts, topsoiling and collecting geotextile materials”. According to Mr Immisch, he also recommended that no “heavy traffic” should use the driveway/road for two weeks of “good weather” to allow the road to settle, and that if “heavy traffic” used the road it may cause damage.
As discussed previously, although Mr Fabbro did not give evidence, the applicant on the basis of what she was told by Mr Fabbro denies that Mr Immisch advised not to use “heavy traffic” on the road, and in any event there was no “heavy traffic.”
Between 28 October 2021 and 23 October 2021, the respondent “returned to the property several times to complete the installation of some minor cleaning up drains and rectify some topsail spots that appeared within the first 50m of the road, as informed by Mr Fabro (sic)”. During this period, Mr Immisch observed a fence had been built beside the “driveway;” trees had been planted; a 25 tonne truck was “bogged” in a field; and a 25 foot crane was bogged in a field. Mr Immisch asserts that this was evidence that the road was being used by “heavy traffic.”
Mr Immisch observed that “works” had been performed on the sides of the roads; drains that had “altered drainage” and there were tyre tracks on the road.
On 2 December 2021, there was the following text message exchange between Mr Fabbro and Mr Immisch:

Fabbro: “Hey mate just letting you know that (sic) is quite a few boggy patches in the road after the rain.
Immisch: Ok I’ll have a look, noticed a couple the other week we were going to fix up, but the weather is not on our side.
Fabbro: One of our guys just got bogged on the road.
Immisch: Can you send me a pic (sic) please.”

Mr Fabbro sent a text message in response with two photographs attached.
Mr Immisch asserts that between November 2021 and May 2022 “significant rainfall” occurred in the area, which is the likely cause of deterioration in the road base and the “washing away” of the recycled asphalt surface.
On 21 December 2021, Mr Immisch again attended the site. He asserts that he observed that “the asphalt on the first 50 meters of driveway had been stripped off”. The respondent, according to Mr Immisch, performed the following work:

Rectifying the “soft spots” and “update the drainage systems.”

Imported gravel and compacted it on the damaged areas of the road base. Recycled asphalt was then laid on top.

Graded the remainder of the road to “promote additional surface run off.”

On 25 February 2022, the respondent sent an invoice to the applicant for $57,457.83, less a “$15,000 discount”. The invoice is attached to the affidavit (at PI-20). It is not clear from the invoice what the $15,000 “discount” is in respect of. In any event, the invoiced amount ($49.211.63) was “paid in full”.
On 23 March 2022, Mr Fabbro sent an email to Mr Immisch. That email states as follows:

“Hi Phil,
We received this invoice form your office, on Friday 25 February 2022.
Not sure if you are aware that this has been sent as we were of the impression that he job was not complete?
We had not received any form of sign off from you and had not had anyone on site that we were aware of since December 2021 when we sent the images of the boggy patches, whi9ch appeared after the laying of the recycled asphalt in October 2021.
After the laying of the recycled asphalt in October the road was in line with the proposed approximation width. As advised, following the rectification of the some (sic) of the boggy patches the road with has blown out and no longer has a defined edge. Towards the front of the property the mixed road surface, as the asphalt is no longer on top, has encroached on our trees, which in November had a significant space before the road and the road a defined edge. Not all of the boggy patches were attended to at this time.
Can you please let us know where you are at with the completion of the project?
Also we paid a 25% payment of $21,872.75 in July based on the total quote.
The latest invoice we are unable to reconcile against your original quote and it doesn’t advise if it is part payment or final payment or total amount owing”
Are you able to provide some clarity around the above queries.
Thanks heaps.”

Mr Immisch responded with an email on 24 March 2022 as follows:

“Hi Fabion (sic),
Hope you are well.
Yeah I agree with a lot of what you are saying. We did complete some repairs on the boggy areas. The reasons the areas are getting boggy is the amount of rain/we weather your property has had since we started and the recycled asphalt didn’t get enough time to set before heavy vehicles and the heavy traffic it receives whent (sic) on it. Something neither of us could help. Also those big boggy areas need more rocky material to bridge out of them. The traffic makes a smaller boggy area bigger and bigger as the water sits in the wheel rut then the next car or truck pushes water into it further and longer. I came out to the property when they first started and they were only isolated areas where the big bog holes were in the old road. To fix these areas we stripped the remaining profiles and added more road base to improve the base material under the profilings and blended the profile with it. We didn’t complete all the boggy areas, only the first section as a test to see how it would hold up so we didn’t blow the budget, wanted to have a chat with you about it before we proceeded further. We also shaped the road to a better shape to help dissipate the water from it, which is the area you are talking about it being wider than originally.
As seen in the invoice we are well under budget for the quote which was also an estimation of what it would cost, it was not a lump sum figure. I did discount a lot and absorbed nearly all of the rework that we did that was caused by the wet weather.
Their (sic) have been some changes you have made also like the blocks and creek crossing extra pipes as well. I was supposed to put progress claims throughout the job as we agreed but I had been snowed under and fell behind.
I’ll update the tax invoice to reflect the deposit paid I just assumed you would fix up what was remaining, that was a mistake at our end apologies. I have tried to call a couple of times as well to talk to you about it and costs to date and when to fix the remaining areas but I know you’re flat out too.
If you could kindly fix up what’s left after deposit part of the tax invoice reconciled I can compete the rest of the work when it gets a good chance to dry out. The deposit has not covered the cost of the materials and I’m carrying debt and wages on this job. Which I am finding hard to deal with at the moment.
At the end of the day we want you to be happy and have a good job, there’s plenty left in the initial budge (sic) to get the job done given we did some extra items and adjustments out of original scope. Unfortunately, the weather has not been on our side.
I’ll try to give you a call tonight.
Thanks Fabian.”

On 2 November 2022, the respondent returned to site to perform further repair works on the road/driveway. This was due to the applicant and Mr Fabbro making further complaints that the road/driveway had deteriorated in several locations. The affidavit of Mr Immisch does not give details of these complaints or when they were made. Mr Immisch asserts that in November 2022 the following works were performed by the respondent at the property:

Supply of 20mm aggregate rocks;

Use of a positrak compactor vehicle.

Supply of additional roadbase;

Provision of 2 tipper trucks to transport materials.

Use of the 20mm aggregate rocks to “repair the road to a useable state”. As recycled asphalt was not available “20 mm stone was used as Mr Fabbro did not want dust on the property”.

Mr Immisch states that on 23 March 2023 and 24 March 2023 the respondent again attended the property and performed “additional works as requested by Mr Fabbro”. There is no detail of any discussions, email exchanges or text message exchanges that led to these “additional works.” However, Mr Immisch asserts the works performed were as follows:

Removal of tree stumps.

Installation of “additional” pipes in causeway.

Importation of additional gravel to the causeway that was damaged due to flooding.

On 22 March 2023, Mr Immisch sent the applicant and Mr Fabbro the following email:

“Hi Guys,
The wet weather held us up in Feb and is still ongoing, we are very close to being able to do those last couple of items. We did finish your road job when we returned a couple of months back, fixing up the issues. Fabian wanted some larger pipes put in and we where (sic) waiting on those to arrive. The works you wanted completed now were not in the original quote 1 year 8 months ago. We will be there ASAP. Apologies for the delay.”

On 31 March 2023, the respondent sent the applicant and Mr Fabbro a tax invoice for $9,958.46
The tax invoice dated 31 March 2023 (which is attached to Mr Immisch’s affidavit) simply sets out costs of materials and equipment. Notably, it refers not only to work done on 23 and 24 March 2023, but to work done on 2 November 2022.
On 6 April 2023, the applicant and Mr Fabbro sent an email to the respondent as follows:

“Hi Phil,
Please pass on our thanks to your operator who did the work on our property most recently. He did a really great job!
On another note, we are confused by your email sent on March 22 which stated:
“We did finish your road job when we returned a couple of months back” and the works you wanted completed were not in the original quote 1 year 8 months ago”.
We have no record of you advising, nor did we believe, that you had completed the quoted works. All phone and email communications contradict that you believed the works were completed.
To that end, Fabian sent an SMS on 03/11/2022 advising you no one was on site. And the causeways and tree stumps, which we acknowledge as additional works ($3,992.53) on 23 & 24/03/2923.
On the 2/11/2022 the driveway was not completed, nor was there advice thereto at that time. The boggy patch at the front and various other areas remain as bare clay/dirt, even to this day.
Consider the time after 02/11/2022 until your email of 22 March 2023 no works were complete on site, therefore the job to quote could not have been completed.
On 14/112022 you advised that you were in the area and going to pop out to plan the next piece of work.
On 24/11/2022 you were looking at when the rest of the work could be booked in.
On 08/12/2022 you advised you would get back with a date you could get to the farm.
On 10/02/2023 you advised that you would be on site int eh next 2-3 weeks (to finish the job you started).
To us, these messages confirm that the works were not yet completed. We are not sure what gave you cause to write that the quoted works were completed in the email of 22 March 2023.
The quote you provided was comprehensive in detailing the job to be done, which we don’t believe is complete. We have paid a total of $89,771.66 and the job is well short of the quoted works. Weather out not to have been a factor, as we experienced well below average rainfall between August and September 2021, just 16 mm and 40 mm respectively, when the works should have been completed.
Below is a snip of the quote detailing the recycled asphalt, which was to give 100mm cover. We believe we have paid for this. It is not on the road ,as can be seen from the images below.”

Between 2 June 2023 and 19 June 2023 there was a further email exchange between the parties. What is set out in those emails has been referred to previously in the evidence of the parties. The position of the respondent was that:

The original quote was an “estimate.”

The respondent kept the price down and “absorbed” costs.

The applicant (by Mr Fabbro) changed the scope of works throughout the contract.

Mr Fabbro agreed to the changes in the scope of works and pricing.

The road was damaged after the recycled asphalt was laid by reason of heavy trucks driving over it before it was set in wet weather. The respondent had previously advised not to drive heavy trucks over it.

The photographs sent by the applicant only show “wear and tear.”

The last invoice should be paid because the respondent did the work that Mr Fabbro requested.

The position of the applicant was:

The applicant had contacted NSW Fair Trading who had referred the applicant to NCAT.

The work was not complete.

The work should have been completed at an earlier time.

There was no significant wet weather or COVID 19 issues to prevent the work being completed.

Although the scope of work changed, that was not unusual and the applicant had paid for the changes.

The respondent had advised on 2 May 2021 that the road could be driven on.

CONSIDERATION

Jurisdiction of the Tribunal-Residential Building Work or a Consumer Claim?

The starting point for whether the Tribunal has jurisdiction under the HB Act is s 48K of the HB Act. Section 48K(1) states the Tribunal has jurisdiction to “hear and determine any building claim” in which the amount claimed does not exceed $500,000 (or any other higher or lower amount prescribed by the regulations).
Section 48A of the HB Act relevantly states as follows:

48A   Definitions
(1) In this Part—
building claim means a claim for—
(a)  the payment of a specified sum of money, or
(b)  the supply of specified services, or
(c)  relief from payment of a specified sum of money, or
(d)  the delivery, return or replacement of specified goods or goods of a specified description, or
(e)  a combination of two or more of the remedies referred to in paragraphs (a)–(d),

that arises from a supply of building goods or services whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services, but does not include a claim that the regulations declare not to be a building claim.
building dispute means a dispute that has been notified as referred to in section 48C.
building goods or services means goods or services supplied for or in connection with the carrying out of residential building work or specialist work, being goods or services—
(a) supplied by the person who contracts to do, or otherwise does, that work, or
(b) supplied in any circumstances prescribed by the regulations to the person who contracts to do that work.

goods, services and supply have the same meanings as in Part 6A of the Fair Trading Act 1987.
(2) Without limiting the definition of building claim, a building claim includes the following—
(a) an appeal against a decision of an insurer under a building cover contract required to be entered into under this Act,
(b) a claim for compensation for loss arising from a breach of a statutory warranty implied under Part 2C.

Clause 2 of Sch. 1 of the HB Act relevantly states as follows:

2   Definition of “residential building work”
(1) In this Act, residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in—
(a)  the construction of a dwelling, or
(b)  the making of alterations or additions to a dwelling, or
(c)  the repairing, renovation, decoration or protective treatment of a dwelling.

(2) Each of the following is included in the definition of residential building work—
(a)  roof plumbing work done in connection with a dwelling,
(b)  specialist work done in connection with a dwelling,
(c)  work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa (or in adding to, altering or repairing any such installation).

(3) Each of the following is excluded from the definition of residential building work—
(a)  any work (other than specialist work) the reasonable market cost of the labour and materials involved in which does not exceed the amount prescribed by the regulations,
(b)  any work (other than specialist work) involved in the manufacturing of a moveable dwelling, within the meaning of the Local Government Act 1993 (other than a moveable dwelling that is a manufactured home within the meaning of that Act),
(c)  any work involved in the manufacture, assembly or erection of a moveable dwelling that is a manufactured home within the meaning of the Local Government Act 1993, other than—
(i)  specialist work, or
(ii)  work involving the connecting together on the site on which the manufactured home is installed of its major sections and any associated structures forming part of the manufactured home and attaching them to footings,

(d)  any work (other than specialist work) involved in the site preparation for, or the assembling or erection on site of, a moveable dwelling excluded by paragraph (b), unless the work requires development consent,
(e)  any work referred to in paragraph (d) done in relation to land on which a council has authorised a moveable dwelling to be placed by issuing an approval under the Local Government Act 1993, whether or not a development consent is also required,
(f)  any work that would otherwise be residential building work but that by or under another Act a person is prohibited from doing unless the person is the holder of a contractor licence or another authority under that other Act, but subject to subclause (4),
(g)  internal painting work, but subject to subclause (5),
(h)  any work (other than specialist work) done in relation to the removal and transport of a dwelling, but subject to subclause (6),
(i)  the supervision only of residential building work—
(i)  by a person registered as an architect under the Architects Act 2003, or
(ii)  by a person supervising owner-builder work for no reward or other consideration, or
(iii)  by any other person, if all the residential building work is being done or supervised by the holder of a contractor licence authorising its holder to contract to do that work,

(j)  demolition work,
(k)  any work involved in the installation of any material that forms an upper layer or wearing surface of a floor (even if installed as a fixture) and that does not involve any structural changes to the floor, but not including work involved in the installation of floor tiles unless the regulations otherwise provide,
(l)  any work that involves the installation or maintenance of any fixed apparatus such as a lift, an escalator, an inclinator or a garage door by means of which persons or things are raised or lowered or moved in some direction that is restricted by fixed guides.

(4) Work referred to in subclause (3)(f) is not excluded from the definition of residential building work if it is part only of the work to be done under a contract to do residential building work.
…

Clause 3 of Sch 1 of the HB Act states as follows:

3   Definition of “dwelling”
(1) In this Act, dwelling means a building or portion of a building that is designed, constructed or adapted for use as a residence (such as a detached or semi-detached house, transportable house, terrace or town house, duplex, villa-home, strata or company title home unit or residential flat).
(2) Each of the following structures or improvements is included in the definition of dwelling if it is constructed for use in conjunction with a dwelling—
(a)  a swimming pool or spa,
(b)  parts of a building containing more than one dwelling (whether or not the building is also used for non-residential purposes), being stairways, passageways, rooms, and the like, that are used in common by the occupants of those dwellings, together with any pipes, wires, cables or ducts that are not for the exclusive enjoyment of any one dwelling,
(c)  parts of a building containing one dwelling only (where the building is also used for non-residential purposes), being stairways, passageways and the like which provide access to that dwelling,
(d)  if non-residential parts of a building containing one or more dwellings give support or access to the residential part—the major elements of the non-residential parts giving such support or access,
(e)  cupboards, vanity units and the like fixed to a dwelling,
(f)  detached garages and carports,
(g)  detached decks, porches, verandahs, pergolas and the like,
(h)  cabanas and non-habitable shelters,
(i)  detached workshops, sheds and other outbuildings (but not jetties, slipways, pontoons or boat ramps and any structures ancillary to these exceptions),
(j)  concrete tennis courts and the like but only if the work involved is to be done under a contract to do other work that is residential building work,
(k)  driveways, paths and other paving,
(l)  retaining walls,
(m)  agricultural drainage designed or constructed to divert water away from the footings of a dwelling or a retaining wall,
(n)  fences and gates,
(o)  ornamental ponds and water features, and other structural ornamentation, the construction or installation of which requires development consent but only if the work involved is to be done under a contract to do other work that is residential building work,
(p)  any other structure or improvement prescribed by the regulations.

(3) Each of the following is excluded from the definition of dwelling—
(a)  a boarding house, guest house, hostel or lodging house,
(b)  all residential parts of a hotel or motel,
(c)  any residential part of an educational institution,
(d)  accommodation (other than self-contained units) specially designed for the aged, persons with a disability or children,
(e)  any residential part of a health care building that accommodates staff,
(f)  a house or unit designed, constructed or adapted for commercial use as tourist, holiday or overnight accommodation,
(g)  any part of a non-residential building that is constructed or adapted for use as a caretaker’s residence,
(h)  a moveable dwelling (with or without a flexible annexe) within the meaning of the Local Government Act 1993 that is, or is a vehicle of a kind capable of being, registered within the meaning of the Road Transport Act 2013 (such as a caravan or a motor home),
(i)  a residential building for the purposes of which development consent can be granted only because of State Environmental Planning Policy No 15—Rural Landsharing Communities,
(j)  concrete tennis courts and the like, except as expressly included under subclause (2),
(k)  ornamental ponds and water features and other structural ornamentation, except as expressly included under subclause (2),
(l)  a building or portion of a building that is prescribed by the regulations as excluded from the definition.

(4) A structure or improvement that is included in the definition of dwelling if it is constructed for use in conjunction with a dwelling is to be regarded as a dwelling whether or not there exists any dwelling of which it could be taken to form part.

By reason of the operation of reg. 12 of the Home Building Regulation 2014 (NSW), the monetary threshold under Cl. 2(3)(a) of Sch. 1 is $5,000.
In this matter, the Tribunal has jurisdiction under the HB Act if the contract or agreement involved construction of a “driveway” (and associated works involving drainage of the “driveway”) if it is a “structure” or “improvement” that is “constructed for use in conjunction with a dwelling.”
“Driveway” is not defined in the HB Act. However, the Macquarie Dictionary definition is as follows:

noun 1. a passage along which vehicles may be driven, especially outside a private house.
2. the area in the front of a service station adjacent to the fuel pumps

The evidence of the applicant was that the “driveway” (her description) or “road” (the respondent’s description) went from Tweed Valley Way (a public road) to the farmhouse dwelling in which she and Mr Fabbro live. The applicant was not seriously challenged in respect of that evidence, and some other evidence was provided in verification. That additional evidence involves Google Map photographs and documents from the local Council. The documents from the local Council do not specifically refer to construction of the “driveway” on the applicant’s property as being part of an approved Development Consent for the renovation of the dwelling. The local Council Policy attached to the affidavit of the applicant dated 4 January 2024 is simply a document that applies to the construction of any driveway.
There is no doubt that the applicant and Mr Fabbro operate a commercial farm; or that the driveway/road is partly used to transport supplies, equipment and goods for the purpose of farming to generate an income. That is clear from the website of the “Mullum Farmers Market” that the applicant’s business Woodland Valley Farm attends as a stallholder. That document is attached to the affidavit of the applicant dated 4 January 2024. It relevantly states as follows:

“Fabian Fabbro and Jodie Viccars took on the property in 2016 with purpose of regenerating the land and waterways. Although they purchased the old dairy farm while working their regular jobs, in 2019 they jumped in, focussing solely on the farm.
With a commitment to regeneration they introduced 120 Hyline Brown hens along with 30 head of Speckle Park cattle. The call this combination of poultry and cattle their ‘regeneration team’-ideal for rotational grazing and form delivering incredible fertilizer to help restore the land.
After selling the eggs at the farmers markets and seeing how well they were received, they increased their flock to 1,800 hens and 400 ducks with four mobile laying caravans that are moved weekly.
…”

However, the mere fact there were commercial activities taking place, and the driveway/road was being used as part of those commercial activities does not, of itself, mean the works were not a “structure” or “improvement” that was “constructed for use in conjunction with a dwelling.” The phrase “for use” is not expressed as “for exclusive use.” There can be a mixture of uses as long as one use is in “conjunction with a dwelling.”
The phrase “in conjunction” is broad. The Macquarie Dictionary defines “conjunction” as follows:

noun 1. the act of conjoining; combination.
2.  the state of being conjoined; union; association.
3.  a combination of events or circumstances.
4.  Grammar
a.  (in some languages) one of the major form classes, or ‘parts of speech,’ comprising words used to link together words, phrases, clauses, or sentences.
b.  such a word, as English and or but.
c.  any form of similar function or meaning.
5.  Astronomy
a.  the meeting of heavenly bodies in the same longitude or right ascension.
b.  the situation of two or more heavenly bodies when their longitudes are the same.
–conjunctional, adjective
–conjunctionally, adverb

Further, there is no definition that restricts a “driveway” under the HB Act to a certain length. Whether or not it is a driveway is ultimately a question of fact. It is also not appropriate, when there is a single structure, to artificially divide it at a certain length between a “driveway” (which falls within the HB Act) and a private road that does not fall within the HB Act. To adopt that approach would lead to the complex and artificial situation where the provisions of the HB Act applied to part of the structure (and the contract between the parties), but did not apply to other parts of the structure. That approach will be necessary when some types of work are specifically excluded from the definition of “residential building work” (see, for example, Morgan v Pitch Perfect Constructions Pty Ltd [2024] NSWDC 235, which partly involved flooring work that was specifically excluded from the definition of “residential building work” under Sch. 1 of the HB Act). However, none of the work the subject of this dispute is excluded work under Sch. 1 Cl. 2(3) of the HB Act.
The jurisdiction of the Tribunal in respect of what is a “building claim” is not to approached in an arbitrary or unduly restrictive manner (Grygiel v Baine & Ors [2005] NSWCA 218 at [57]-[58]).
The Tribunal is satisfied the works the subject of this dispute involve the construction of a driveway that was constructed for use in conjunction with a dwelling. Accordingly, the provisions of the HB Act apply to this dispute and the Tribunal has jurisdiction under the HB Act.
Even if the Tribunal was wrong regarding the construction of ss 48A; 48K and Sch. 1 of the HB Act, the Tribunal would still have jurisdiction under Part 6A of the Fair Trading Act 1987 (NSW) (FT Act), subject to making orders to the monetary jurisdictional limit under the FT Act (John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60). The proceedings are a “consumer claim” under Part 6A of the FT Act; and have been commenced within 3 years of any applicable cause of action. Under s 28 of the FT Act, the ACL is a law of NSW, and the applicant would have the benefit of the consumer guarantee provisions by reason of the agreement between the parties for the provision of goods and services being less than $100,000, irrespective of whether or not the goods and services were for private consumption (s 3 of the ACL).
Different causes of action (relevantly involving the consumer guarantee provision of the ACL) would apply rather than breach of statutory warranties under s 18B of the HB Act, and the obligations on the respondent regarding the type of contract; licensing; and insurance; under the HB Act (relevantly, ss 7, 10, and 94 of the HB Act) would not apply. However, there is clear similitude between the consumer guarantees to provide services with due care and skill (s 60 of the ACL); services fit for purpose (s 61 of the ACL); and services within a reasonable period of time (s 62 of the ACL) with the statutory warranties under ss 18B(1)(a);(b); (d) and (f) of the HB Act. There is also similitude between the legal principles regarding services being provided with due care and skill; and services being fit for purpose under the ACL (see, for example, Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 at [6] in respect of the consumer guarantee for services provided with “due care and skill”; and Karpik v Carnival PLC [2023] FCA 1280 in respect of services “fit for purpose”) and the statutory warranties under s 18B of the HB Act.

Flaws in the Evidence of the Applicant

The applicable legal principles regarding breach of statutory warranties will be set out later in this decision. However, at this juncture, it is appropriate to refer to two obvious flaws in the evidence of the applicant.
The first is the applicant’s expert evidence. Mr Wilson is a longstanding friend of the applicant. He did not physically inspect the property, or carry out any measurements or investigations. He is not a civil engineer. His CV referred to in his report is brief. In oral evidence, he asserted that he was experienced in road building due to his operation of a truck and plant hire company, but his evidence in that regard was vague. There was no clear evidence that he had designed, or been involved in the design of, a driveway/road of the type that is the subject of this dispute. There was also no clear evidence he had been involved in the construction of a similar driveway/road the subject of this dispute, as distinct from public roads.
In summary, there was a paucity of evidence to demonstrate that Mr Wilson is an appropriately qualified and experienced professional capable of giving expert evidence. Even if he is accepted has have some degree of experience and expertise, his credibility as an independent expert is significantly reduced by his longstanding friendship with the applicant. Further, he did not disclose that friendship in his report. It was first raised during oral evidence. It is fundamental to the role of an expert witness to whom NCAT Procedural Direction 3 (the Code) applies that they be “impartial” and not be an advocate for a party (cl. 14-16 of the Code).
The second flaw is the absence of any evidence from Mr Fabbro. One of the issues raised by the respondent is that the applicant (by her agent Mr Fabbro, who was a person with ostensible authority because he was negotiating with and dealing with Mr Immisch on behalf of the applicant) had varied the terms of the contract or otherwise given permission to the respondent to perform works. Mr Immisch refers to agreements to change the scope of works; and the addition of different material as road base other than recycled asphalt.

…

What will be sufficient evidence to prove, on the balance of probabilities, that works are defective will depend upon the particular facts and circumstances of each case, including whether the amount claimed or in dispute is relatively small (Khan v Khan [2014] NSWCATAP 48 at [49]-[53]). The homeowners bore the onus of proving on the balance of probabilities the work was defective. The mere fact they relied on an expert report, and the builder did not, does not automatically result in the Tribunal accepting the contents of the RJK Report and the homeowners succeeding in their case. It was open to the Tribunal to find that the RJK Report (considered with all other relevant evidence) was not sufficient for the owners to discharge their onus of proof.”

Time Limits For Brining Breach of Statutory Warranty Proceedings

By reason of the operation of (ss 3B and 18E)(1)(b) of the HB Act, an applicant has, in essence, 2 years from the date of completion of the work to bring proceedings for any defects; and 6 years for major defects.
In this matter, the applicant commenced Tribunal proceedings within 2 years of the works being completed, or in the alternative, the last date the respondent was on site performing works that do not involve rectification of defects (s 3B)(2) and (3)(b) of the HB Act.
The applicant submits that the works are “incomplete.” The Tribunal does not accept that submission.
In Llamas v Rockwall Constructions Pty Ltd; Rockwall Constructions Pty Ltd v Llamas [2019] NSWCATCD 75 the Tribunal stated as follows at [54]-[56]:

“There can be a fine line between “defective work” and “incomplete work,” and in some circumstances (such as where the builder has repudiated) it may make no relevant difference to distinguish between the two concepts.
For example, a contract may provide that under a progress payment stage in the contract, the builder was to complete a balcony with a railing (as identified in the plans); and the builder had a contractual right to issue a progress payment claim under the contract and be paid when the work identified in the progress payment stage was substantially complete. The builder then issued the progress payment claim, and the homeowner paid the claim. The balcony was constructed, but not the railing, and the contract was terminated before the builder constructed the railing. In such circumstances, although the work was “incomplete,” the failure to construct the railing is also defective work in breach of the statutory warranties in s 18B of the HB Act.
The issue becomes more complex when the contract is terminated part of the way through a progress payment stage, or the builder has not performed the work in the sequence set out in the progress payment schedule in the contract. The distinction between “defective work” and “incomplete work” becomes important if the homeowner has repudiated the contract. What is “defective work” and “incomplete work” will then depend upon the evidence in the case, including the opinions of any experts.”

In this matter, the driveway/road was completed in substance by the end of December 2021. Works after that date were primarily to deal with complaints by the applicant and Mr Fabbro about deterioration of the road (works in November 2022) and to further address drainage in the causeway and deterioration of the driveway/road in the causeway area.
The Tribunal is satisfied that works after December 2021 were not to address incomplete work, but were to address complaints by the applicant and Mr Fabbro regarding the condition of the driveway/road (which is not additional work but the rectification of a purported defect) and to perform additional works not within the scope of work under the contract.
The complaints of the applicant and Mr Fabbro about “incomplete” work are, in substance, complaints that the existing works performed are defective (i.e. that they fail to comply with the requirements under s 18B of the HB Act). The contract between the parties is clearly no longer on foot.

Has The Applicant Established Works are Non-Compliant With The Statutory Warranties Under s 18B of the HB Act?

Due Care and Skill and In Accordance With the Plans and Specifications-s 18B(1)(a) HB Act

Parties cannot contract out of the statutory warranty provisions under s 18B of the HB Act (s 18G HB Act).

Specifications

The applicant submits that the works were not performed in accordance with the “plans and specifications” under the contract.
However, there were no plans that formed part of the contract.
The specifications are relevantly the scope of works that was included in the written quotation dated 27 April 2021.
There are disputes between the parties regarding what are the terms of the contract. There clearly was a contract between the parties, with work performed and monies paid for the work.
The Tribunal is satisfied that the quotation of 27 April 2021 forms the written terms of the contract. As the NSW Court of Appeal stated in Gordon & Gotch Australia Pty Ltd v Horwitz Publications Pty Ltd [2008] NSWCA 257 at [36]-[37]:

“Interpretation is the ascertainment of the meaning which a document would convey to a reasonable person in the context: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; 219 CLR 165 at 179 [40]. That interpretation can shade into implication and, indeed, that both may perhaps be seen as part of the one process of the construction of words in a document to identify linguistic and legal meaning can be accepted. However, the distinction between interpretation and implication of terms is recognised (even if the limits of each are not capable of clear definition): see Codelfa Construction Pty Limited v State Rail Authority(NSW) [1982] HCA 24; (1982) 149 CLR 337 at 345 (per Mason J, with whom Stephen and Wilson JJ agreed in this respect); Martin-Baker Aircraft Co Ltd v Canadian Flight Equipment Ltd [1955] 2 QB 556 at 578; National Commercial Bank Jamaica Ltd v Guyana Refrigerators Ltd(Jamaica) [1998] UKPC 14 at [12] (Lord Steyn speaking on behalf of himself and Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Hutton and Sir Christopher Staughton); Equitable Life Assurance Society v Hyman [2002] 1 AC 408 at 458-459; and South Australian Asset Management Corporation v York Montague Ltd [1996] UKHL 10; [1997] AC 191 at 212.
37 As Steyn LJ said in P & O Property Holdings Ltd v Norwich Union Life Assurance Society (unreported, England and Wales Court of Appeal, 1 April 1993, extracted in [1995] LMCLQ at 19) speaking for himself, Dillon and Rose LJJ:
... [I]t is important never to forget the purpose of the process of interpretation. It is to assign to the language chosen by the parties the most appropriate meaning which the words can legitimately bear ... [b]ut interpretation must not become a route to supplementing or changing the contractual regime which the parties have chosen by the language appearing above their signatures. That is an end which can only be achieved by implication, in law or fact, of a term into the chosen language of the parties. That process can, however, only be pressed into service if the implication is essential to make the contract work, or if it is otherwise entirely obvious.”

The Tribunal is not satisfied that there were further oral terms that form part of the contract, or are implied into the contract. The evidence of both parties on whether there were additional terms is so vague and contradictory that the Tribunal cannot be satisfied that further terms should be implied to give the contract business efficacy; or that there are terms that can be identified with sufficient certainty. In any event, it is unnecessary to explore this issue to finality, because the issues raised by the applicant fall within the statutory warranty provisions of s 18B of the HB Act.
In respect of the work of the respondent not complying with the specifications, there is insufficient evidence to satisfy the Tribunal that the works do not comply with the specifications, other than in respect of the installation of “spoon drains.”
The complaints of the applicant regarding failure to comply with the specifications (as distinct from the works not being done with due care and skill and works not being done within a reasonable period of time) involve inadequate drainage and the road not being covered with 100mm of recycled asphalt throughout.
However, there is not sufficient evidence to satisfy the Tribunal that the respondent did not place cover of 100mm of recycled asphalt in October 2021. The applicant complains that the recycled asphalt should have been applied earlier (in July 2021, after the road base was constructed other than the application of cover); and that the asphalt should not have been applied in wet conditions. However, they are different issues to whether 100mm of recycled asphalt was applied.
The evidence of the applicant (including photographic evidence), and the opinion of Mr Wilson, taken in the context of any contemporaneous text messages and emails is not sufficient to establish a factual finding that the respondent did not apply 100mm of recycled asphalt cover.
It is clear that the respondent returned to the site in December 2021 to perform further works after Mr Fabbro complained of “boggy patches”. The applicant asserts that the respondent “stripped off” recycled asphalt from the road. Mr Immisch asserts that to rectify the “soft spots” (mostly in the first 50 m of the road) the respondent “imported gravel and compacted it onto the damaged area of the road base” and then laid recycled asphalt thereafter.
In respect of those further works, the Tribunal accepts the evidence of Mr Immisch as to what was done. There is not sufficient evidence to support the applicant’s opinion that the respondent “stripped” the recycled asphalt.
After the works of December 2021, the Tribunal is not satisfied that, at that point in time, there was not 100 mm of cover of recycled asphalt. The introduction of some gravel to rectify the boggy patches is not sufficient to satisfy the Tribunal that the respondent failed to comply with the specifications under the contract to use a cover of 100 mm recycled asphalt.
Even if the Tribunal was satisfied that the respondent had not laid a cover of 100mm of recycled asphalt on all parts of the 2,800 m long road/driveway, the applicant has failed to establish a method of rectification that is necessary, and a reasonable course to adopt.
The applicant does not seek, nor has it provided evidence, for the addition of recycled asphalt to the road at parts of the road. Rather, the applicant seeks, based on the evidence of Mr Wilson, the complete reconstruction of the driveway/road with the addition of table drains. Table drains were not part of the scope of works under the contract with the respondent.
The Tribunal has referred to the flaws in the expert report of Mr Wilson previously. In summary, the Tribunal is not satisfied that purported expert evidence by a longstanding friend of the applicant who did not personally inspect the property and based his opinion solely on material provided by the applicant can be given any weight. Further, the qualifications and expertise of Mr Wilson were expressed in such broad terms that the Tribunal cannot be satisfied he is suitably qualified and experienced to opine on the issues of defects and a method of rectification that is necessary and a reasonable course to adopt.
There is sufficient evidence for the Tribunal to be satisfied that there were not “spoon drains” installed. However, the specifications in the scope of works do not identify how many “spoon drains” were to be installed, or whether they were to be installed. The Tribunal is satisfied that drainage was installed by the respondent. Whether that drainage was installed with due care and skill is an issue to be discussed separately.
However, the absence of “spoon drains” is not sufficient for the applicant to succeed in the matter. The applicant has not provided evidence regarding the installation of spoon drains. Rather, the evidence of the applicant involves the installation of table drains in conjunction with the complete rebuilding of the driveway/road. The Tribunal is not satisfied that such works are necessary to achieve compliance with the contract and a reasonable course to adopt.
The Tribunal also notes that the quotations relied upon by the applicant from L Booth Earthmoving and Garbett’s Excavations involve the installation of “bitumen seal” rather than the installation of recycled asphalt.
The Tribunal, having considered the evidence in comparison with the written specifications set out in the quotation of the respondent dated 27 July 2021, is not satisfied that there is breach of the statutory warranty to perform works in accordance with the specifications in the contract such that the Tribunal is satisfied a work order, or money order, under s 48O of the HB Act should be made in favour of the applicant.

Due Care and Skill

As discussed previously, the applicant raises a number of assertions that the works have not been performed with due care and skill. In summary, these relate to the delay in applying the recycled asphalt; constructing the road base and applying the recycled asphalt in unduly wet conditions; inadequate drainage; and inadequate cover of the road.
However, the critical support of these assertions is the report of Mr Wilson. For reasons expressed previously, the Tribunal does not accept the evidence of Mr Wilson, even in the absence of evidence from the respondent other than Mr Immisch.
In Khan v Kang [2014] NSWCATAP 48 at [48]-[53] the Appeal Panel discussed circumstances where expert evidence (in conjunction with other evidence) could be relied upon to establish a defect, even if the report was not in compliance with the NCAT Expert Witness Code of Conduct. However, the circumstances of this matter are different. The applicant is seeking an order that she be awarded damages for the cost of a complete reconstruction of the road/driveway in an amount of approximately $100,000. The evidence regarding establishment of defects; and if defects are established what work is necessary to achieve compliance with the contract and is a reasonable course to adopt is insufficient in the context of the orders sought.
In respect of the photographic evidence relied upon by the applicant, most of that evidence occurs during the period of July-November 2021. There are relatively few photographs for the period after December 2021, and those photographs are not persuasive.
The Tribunal is not satisfied the applicant has proved, on the balance of probabilities, that the works performed by the respondent were not performed with due care and skill; nor (if breach was established) the rectification works sought are necessary to achieve compliance with the contract and a reasonable course to adopt.

Work Not Completed With Due Diligence and Within the Time Stipulated in the Contract Or If No Time Stipulated, a Reasonable Period of Time (s 18B(1)(d) HB Act).

The written quotation of 27 April 2021 states that work will be completed within “approximately 2 weeks” from commencement.
That did not occur. Although the word “approximately” means that it was not a term of the contract that works be completed precisely 2 weeks after commencement, it cannot be objectively construed that the works would take as long as they did to complete.
The builder asserts that there were good reasons for the delay, including inability to obtain recycled asphalt from Queensland (due, in part, to COVID-19 border restrictions) and wet weather delays.
However, the Tribunal does not accept that the contract should be construed in a manner that meant the works could be completed at any date when the builder obtained materials. It was a term of the contract that the works be completed in “approximately 2 weeks” from commencement. There is no written term of the contract that the builder could unilaterally extend the period of time for completion due to weather events or inability to obtain materials. Irrespective of whether there were good reason for the delay, the respondent was in breach of the statutory warranty under s 18B(1)(d) of the HB Act.
However, mere breach is not sufficient. The applicant has not established any damage or loss caused by the breach. The applicant could have sought to terminate the contract by reason of the builder’s breach of an essential term (DB Homes Australia Pty Ltd v Kes [2019] NSWCATAP 221 at [44]-[46]) and engaged another builder. Rather, the applicant elected not to terminate the contract, and the respondent completed the work outside the period for completion pursuant to the terms of the contract.
The applicant (and Mr Wilson) refer to the issue of delay in respect of the period between July 2021 and October 2021, when the road base was completed but the recycled asphalt cover was not applied, and vehicles drove on the road. However, what the applicant raises in respect of that issue is not damage caused by breach of the statutory warranty in s 18B(1)(d) of the HB Act, but that the work was not performed with due care and skill. There is not a separate purported breach that caused damage or loss.
As discussed previously, the applicant has failed to prove to the requisite standard of proof that the driveway/road was not constructed with due care and skill. The Tribunal is not satisfied on the evidence (primarily, the evidence of Mr Wilson) that the delay in applying the recycled asphalt and using the driveway/ road caused any damage to the structure of the driveway/road that was not subsequently repaired or rectified by the completion of the works. The Tribunal has explained in detail previously why it does not accept the evidence of Mr Wilson.
Further, even if the Tribunal found that failure to complete the works within the time stipulated in the contract had caused some damage, the applicant has failed to establish the work that is necessary to achieve compliance with the contract and a reasonable course to adopt.

Work And Materials Used Being Reasonably Fit for the Specific Purpose or Result If the Person Makes Known the Particular Purpose Form Which The Work Is Required Or the Result That the Owner Desires to Achieve (s 18B(1)(f) HB Act).

This issue is referred to in Mr Wilson’s report, and the applicant’s submissions on this issue are in similar terms.
In essence, the applicant repeats the assertions that the driveway/road does not have 100mm cover of recycled asphalt; that it has inadequate drainage; and it is structurally inadequate such that it is not fit for purpose.
It is unnecessary to repeat the previous factual and legal findings, but they are applicable to the purported breach of s 18B(1)(f) of the HB Act. Regarding the term of the contract that 100 mm of recycled asphalt be applied, that is not a term of the contract, nor an obligation under s 18B(1)(f) that there will always be 100mm of recycled asphalt covering the road in perpetuity. The term is that 100mm of recycled asphalt be applied. The applicant has failed to prove it was not applied in October 2021. The subsequent “boggy patches” that were rectified in December 2021 involved the use of gravel and recycled asphalt placed on top. Again, the applicant has failed to prove that this constitutes a breach of the contract, or a breach of s 18B(1)(f) of the HB Act.
In respect of the assertion that the works are not fit for purpose or a desired result, that is not a warranty that any dissatisfaction by the applicant with the ultimate result of the works constitutes a breach of contract. The evidence does not establish the driveaway/road is not fit for the purpose or result of vehicles (including vehicles and trucks used for commercial farming) being unable to use the road/driveway to access the premises.

Conclusion-Breach of Statutory Warranty

The applicant has failed to prove the necessary facts to the requisite legal standard that the respondent has breached the statutory warranties in s 18B of the HB Act (other than in respect of the failure to install spoon drains and the works not being completed within the requisite contractual period) such that it is necessary, and a reasonable course to adopt, to reconstruct the driveway/road. The applicant has not put forward evidence such that the Tribunal could make a limited work order, such as repairing any smaller sections of the driveway/road or adding recycled asphalt to the driveway/road.
The Tribunal notes that in the applicant’s affidavit of 4 January 2024, there is reference to alleged “misrepresentations” of Mr Immisch. However, the applicant did not identify in the Points of Claim an action under s 18 of the ACL, nor is that referred to in the applicants written submissions. Even if such a cause of action had been raised, and the Tribunal was satisfied that there had been conduct which was misleading or deceptive or likely to mislead or deceive, the applicant would have failed to establish any damage or loss caused by misleading or deceptive conduct (Mills v Walsh [2022] NSWCA 255), as distinct from damage caused by breach of the statutory warranties under s 18B of the HB Act.

Order Not to Pay Invoice 2027 Dated 31 March 2023

For reasons expressed previously, the applicant’s claim for breach of statutory warranties fails.
However, there is a second order sought by the applicant. That is an order (which the Tribunal has the power to make under s 48(1)(b) of the HB Act) that the applicant not pay the respondent’s invoice dated 31 March 2023 in the amount of $9,958.46.
Although the respondent withdrew its application for payment of that amount, the Tribunal must still consider the issue under the auspices of the applicant seeking an order that the amount not be paid.
The Tribunal is satisfied that the amount should not be paid, as the respondent has no legal basis for claiming the amount.
The Tribunal has found that the works are residential building work to which the HB Act applies.
The respondent did not provide a written contract that complies with s 7 of the HB Act. There is no evidence that the respondent took out home warranty insurance, which is a requirement if the value of the contractual works exceeds $20,000.
By reason of s 10 of the HB Act, the respondent is not entitled to enforce a remedy for breach of contract in respect of the invoice. In essence, the respondent’s position is that there was an agreed variation of the contract. However, by reason of s 10 of the HB Act, it cannot enforce such a right to payment (Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159; Paraiso v CBS Build Pty Ltd [2020] NSWSC 190).
The only basis for payment is quantum meruit. By reason of the failure to take out home warranty insurance for the works, there is a two step process by reason of the operation of s 94(1A) of the HB Act. Firstly, it must be just and equitable that the party who contracted to do the work (i.e. the respondent) be able to recover money on a quantum meruit basis, which involves consideration as to why home warranty insurance was not taken out (Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273). Secondly, if it just and equitable to allow recovery on a quantum meruit basis, there must be evidence to establish the principles of quantum meruit. Those principles were summarised in SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10 as follows at [487]:

“(1) If the quantum meruit claim involves an unenforceable variation, the builder must prove the homeowner had actual knowledge of the additional works; that the works were outside the contract; and the builder expected to be paid for the additional work.
(2) In respect of all quantum meruit claims, the onus is on the builder to establish the reasonable value of the work that performed and accepted by the homeowner. This is a question of fact. Relevant evidence will include any invoices/receipts of the builder; time sheets of the builder; rates under the contract for labour and materials; and expert evidence that analyses the work actually performed and the reasonable cost of such work.
(3) The amount recoverable in a quantum meruit claim cannot exceed the amount that would have been payable under the contract for that component of the work.”

In this matter, there is no adequate explanation as to why home warranty insurance was not taken out. The relevant explanation, from the manner in which the respondent conducted the case, must be that the respondent did not believe the work involved residential building work, and home warranty insurance did not need to be taken out. From the findings of the Tribunal, that was in error, and the Tribunal is satisfied that it is not just and equitable for the respondent to be paid on a quantum meruit basis in respect of Invoice 2027.
Further, even if it was just and equitable for the respondent to be paid on a quantum meruit basis, the respondent has not provided any detailed evidence in respect of the reasonable value of the work performed and accepted by the applicant. The invoice lacks detail, and the evidence of Mr Immisch is also deficient in respect of the reasonable value of the work.
The Tribunal is satisfied that the applicant has established that the Tribunal should make an order under s 48O(1)(b) of the HB Act that the applicant is not liable to pay the amount of the invoice. Even if the Tribunal did not have jurisdiction to make such an order under s 48O of the HB Act, it would have the power to make the same type of order under s 79N(d) of the FT Act.

The Issue of Costs

If a costs application is to be made, it is to occur by the party seeking costs filing and serving a miscellaneous orders application, together with all costs submissions and documents relied upon by 28 days from the date of these proceedings. If that occurs, the Tribunal will make further procedural directions for the disposition of the costs application.
However, any costs submissions must deal with issues that include the following:

The applicant had partial success in the proceedings.

The amount claimed or in dispute in the proceedings exceeds $30,000, so r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) applies.

The respondent was only granted leave for legal representation on 18 March 2024 (Kontaineroo Pty Ltd v Slaveski [2024] NSWCATAP 264 at [47]).

If no costs application is made, there is no order as to costs.

ORDERS

The amount of $9,958.46 is not due or owing to the respondent in respect of Invoice 2027 dated 31 March 2023.
The proceedings are otherwise dismissed.
Any costs application is to be made by way of a party filing and serving of a miscellaneous orders application, together with all documents and submissions relied upon in the costs application. If such a costs application is made, the Tribunal will make further procedural directions regarding the filing and serving of costs submissions and documents.

**********

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: 19 May 2025

Medium Neutral Citation:	Viccars v Leader Earthworks Pty Ltd [2025] NSWCATCD 8
Hearing dates:	18 March 2024; 12 August 2024; submissions to 30 August 2024
Date of orders:	14 February 2025
Decision date:	14 February 2025
Jurisdiction:	Consumer and Commercial Division
Before:	G Sarginson, Deputy President
Decision:	(1) The amount of $9,958.46 is not due or owing to the respondent in respect of Invoice 2027 dated 31 March 2023. (2) The proceedings are otherwise dismissed. (3) Any costs application is to be made by way of a party filing and serving of a miscellaneous orders application, together with all documents and submissions relied upon in the costs application. If such a costs application is made, the Tribunal will make further procedural directions regarding the filing and serving of costs submissions and documents.
Catchwords:	BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – jurisdiction – whether work involves residential building work – breach of statutory warranties – whether breach and damage established – whether rectification work necessary and a reasonable course to adopt – payment of invoice – whether respondent entitled to payment
Legislation Cited:	Australian Consumer Law 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW)
Cases Cited:	ACCC v Dataline.Net.Au Pty [2007] FCAFC 146; (2007) 244 ALR 300 Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158 DB Homes Australia Pty Ltd v Kes [2019] NSWCATAP 221 Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 G v H [1994] HCA 48; (1994) 181 CLR 387 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Gordon & Gotch Australia Pty Ltd v Horwitz Publications Pty Ltd [2008] NSWCA 257 Grygiel v Baine & Ors [2005] NSWCA 218 John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60 Karpik v Carnival PLC [2023] FCA 1280 Khan v Kang [2014] NSWCATAP 48 Kontaineroo Pty Ltd v Slaveski [2024] NSWCATAP 264 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 Leung v Alexakis [2018] NSWCATAP 11 Llamas v Rockwall Constructions Pty Ltd; Rockwall Constructions Pty Ltd v Llamas [2019] NSWCATCD 75 Metricon Homes Pty Ltd as trustee for Metricon Unit Trust v Lipari [2024] NSWSC 566 Mills v Walsh [2022] (NSWCA 255), Morgan v Pitch Perfect Constructions Pty Ltd [2024] NSWDC 235 Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 Re Day [2017] HCA 2; (2017) 340 ALR 368 Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51 SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10 Shakiri v Holland [2024] NSWCATAP 28
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Jodie Viccars (Applicant) Leader Earthworks Pty Ltd (Respondent)
Representation:	J Viccars, self-represented (Applicant) Solicitors: CJM Lawyers (Respondent)
File Number(s):	2023/00390333
Publication restriction:	Nil