Warren v K Kavangh t/as Local Fencing

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Warren v K Kavangh t/as Local Fencing [2015] NSWCATCD 140

Hearing dates:

12 October 2015

Decision date:

20 November 2015

Jurisdiction:

Consumer and Commercial Division

Before:

B Shipp, Senior Member

Decision:

In matter HB 15/35616 (the Builder’s application)

 

1. The application is dismissed.

 

In matter HB 15/46670 (The Home Owner’s application)

 

1. The amount of $10,456.00 is not due by the Home Owner to the Builder pursuant to Tax Invoice dated 16 September 2014.

 2. The Builder is to pay the Home Owner the sum of $5,500.00 on or before 15 December 2015.

Legislation Cited:

Home Building Act 1989

Cases Cited:

Craftsmen Restoration & Renovations Pty Ltd v Boland [2011] NSWCA 147
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277
Darin v Olzomer [2012] NSWCA 60
Jason and Michelle Zammit trading as Zammit’s Quality Constructions v Saul Markunsky and Shereen Markunsky [2015] NSWCATCD 21
Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273
Stephenson v State Bank of New South Wales (1996) 39 NSWLR 101
Talga v MBC International Limited [1976] HCA 22; (1976) 133 CLR 622
Sullman v Sullman [2002] NSWSC 169
Pender v Robwenphi Pty Limited & Anor [2008] NSWSC 1144

Category:

Principal judgment

Parties:

Ms Tegan Warren (applicant)
Mr K Kavanagh trading as Local Fencing (respondent)

Representation:

The Home Owner in person with Mr Laurence Warren
Mr K Kavanagh and Mr Lindsay Baxter

File Number(s):

HB 15/35616HB 15/46670HB 15/35616HB 15/46670

Publication restriction:

Nil

reasons for decision

Background

1. In or about September 2014, the Home Owner Ms Tegan Warren agreed with the Builder Mr Keith Kavanagh trading as Local Fencing for the provision of building works consisting of the construction of fences and a retaining wall around her property in Bardia.

2. The terms of the contract and scope of works are contained in a 1-page Tax Invoice document (with the Builder’s letterhead) dated 16 September 2014. This replaced an earlier similar document dated 9 August 2014. The full amount due under the contract is $10,480.00.

3. It was common ground that work commenced on 26 December 2014. The Home Owner quickly became dissatisfied with the work, and concerned about the lack of apparent qualifications of those doing the work. She requested that construction cease until there could be further discussions.

4. There were further discussions on 5 January 2015 as a result of which the Home Owner states she reluctantly agreed to the Builder not demolishing the 25 metre fence incorrectly installed, but stepping it down instead of it being level. She reluctantly agreed to pay an extra $280.00 for materials.

5. Work continued for 2 days from 8 January 2015 and then ceased. Work recommenced about 2 weeks later and continued irregularly until 28 January 2015 when the Builder suggested the work was complete.

6. The Home Owner remained dissatisfied with the work, and emailed the Builder with a list of defects.