Williams v Ahal

[2023] NSWCATCD 185

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Williams v Ahal [2023] NSWCATCD 185
Hearing dates:	25 October 2023
Date of orders:	27 November 2023
Decision date:	27 November 2023
Jurisdiction:	Consumer and Commercial Division
Before:	G. Bassett, General Member
Decision:	(1) The respondent, Paul Joseph Ahal trading as Paul’s Quality Concreting, is to pay the applicant, Michelle Williams, the sum of $16,379.60 immediately.
Catchwords:	BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Due care and skill — Fit for purpose — Proceedings for breach — Rectification order
Legislation Cited:	Home Building Act 1989, ss 18B, 48MA
Category:	Principal judgment
Parties:	Applicant: Michelle Williams Respondent: Paul Joseph Ahal trading as Paul’s Quality Concreting
Representation:	Applicant: self-represented Respondent: Ms Mao
File Number(s):	2023/00383790 (Previously HB 23/33735)
Publication restriction:	Unrestricted

REASONS FOR DECISION

Application and procedural history

1. On 23 July 2023, the applicant applied for orders:

1. to be relieved from paying the respondent the amount of $120.00

2. to be paid the amount of $15,950.00.

2. The applicant alleged a breach of a statutory warranty.

3. The matter came before the Tribunal for conciliation hearing on 23 August 2023. Usual orders were made with respect to providing documents for hearing including any reports from expert witnesses. At the conciliation hearing the respondent indicated that the applicant still owed him the balance of $5,000.00 for the final instalment for contract works.

4. At the end of the formal hearing, the respondent was given the opportunity to supply a copy of two quotes he mentioned at the hearing and any written instructions supplied to person(s) that provided those quotes. The applicant was given the opportunity to lodge submissions on those quotes from her expert who gave evidence during hearing. Respondent provided his material on 31 October 2023 and the applicant on 3 November 2023.

Jurisdiction

5. Section 48A of the Home Building Act 1989 (“the Act”) states that a building claim is a claim for payment of a specified sum of money 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 such a contract. This is a claim for a payment of money relating to the supply of concreting goods and services.

6. Under section 48K of the Act this claim is within the monetary jurisdictional limit of $500,000 and filed within 3 years of the supply of building goods and services.

Relevant legislation

7. At section 18B(a) - 18B(c) of the Act a holder of a contractor licence such as the respondent has implied into every contract a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract. There is also a warranty that all materials supplied by the respondent will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new.

8. The Act sets out a preferred outcome for a rectification remedy as follows:

48MA   Rectification of defective work is preferred outcome in proceedings

A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.

Evidence of the parties

9. Parties lodged multiple sets of documents for hearing. They gave oral evidence and questioned each other on that evidence. All that material has been considered in coming to this determination.

10. On 20 July 2022 the respondent provided a quote in the sum of $14,795.00 to carry out various concreting works. On 22 August 2022, a further quote was supplied in the sum of $20,790.00. The total contract price was $35,585.00. The concrete was poured on 27 August 2022. Seal was applied on 3 October 2022. The applicant was an owner builder in respect of building works being carried out at the property.

11. The applicant alleged defects appeared. Applicant said she contacted the respondent who suggested two dates for repairs to be carried out, being 28 May and 3 June 2023. On one occasion a person attended for the respondent and was shown the problems. He was shown a hole / void in the concrete area where water was ponding. Issues relating to sealing of the concrete were also discussed. The applicant said the representative of the respondent undertook to re-seal, but never returned to site to carry out repair works.

12. Defects alleged were subject of an expert report dated 5 September 2023. The expert found:

1. colour finish applied was delaminating and lifting in many locations and driveway work was defective and not completed to acceptable finish

2. water was ponding and gathering as minimum surface crossfall, falls / gradients did not comply with Australian Standard AS 3727.1: 2016 for residential pavements

3. the paving adjacent the front porch and behind the gate on the right side of the property contained little or no fall and was holding the water in the form of ponding

4. finish applied to the base concrete was defective

5. the grate drain installed by the contractor was not installed correctly and presented a safety or trip hazard.

13. The expert found that the quote supplied by a third party to rectify the works was reasonable but for omission of an allowance for the lack of fall in the paving behind the gate on the right-hand side of the property. That factor was included in the expert’s Scott Schedule of Works. The total reasonable cost to make good the defective work was $17,749.60.

14. The applicant said she did not want an order under section 48MA of the Act. She did not want to deal with the respondent again. She said he was an “aggressive bully”. Despite being given numerous opportunities, no repairs had been done. When the applicant communicated her concerns, the contractor had dismissed the alleged defects as minor. She had also lost faith in the respondent as a licensed builder as he had breached his obligation to provide home warranty insurance in respect of the works and required more than 10% of the contract price as a first instalment payment.

15. Even though he was given the opportunity in directions made at the conciliation hearing, the contractor provided no expert report in relation to the alleged defects. Instead, the respondent gave his own opinion as to each of the defects. He submitted concrete will be different colours in different areas depending on factors such as sunlight and shade. The peeling was curable with application of a sealer, and it would fix any colour differences as well. In relation to water ponding, he said there was no hole when he finished the works. He said a dog or turkey may have walked through the job once completed. He said he tested the alleged ponding of water by pouring a bottle of water and it ran off. He admitted works may not comply with Australian standards in relation to fall and gradients, but, in any event, and based on his tests, “water was getting away”.

Determination

16. The Tribunal does not accept that a rectification order is the best remedy in this matter. The respondent has been given ample opportunity to repair the works. Each time repairs were arranged he has either not attended or the person who has attended has minimised the defects.

17. The Tribunal accepts the expert report of the applicant as to the defects. There was no report to the contrary. The personal opinions of the respondent given at hearing as to each defect reflected a failure to seriously consider the defect claims as indicated to him by the applicant during the contract period or as set out in the expert report. The unfounded allegation that a hole may have been caused by a dog or turkey was at best desperate conjecture not supported by any evidence. The testing of levels and gradients by applying a bottle of water to test fall borders on the trite. The allegation that discoloration was caused by variables such as sun or shade again shows a failure of the respondent to take the defect seriously even in the face of a report from a well-qualified expert about the discoloration.

18. The Tribunal is satisfied the respondent has breached implied warranties in that the work was not done with due care and skill and in accordance with Australian standards. Materials supplied are not good and suitable for the purpose of a concrete slab and driveway. Levels are not compliant, resulting in ponding of water. The appearance of the works is unsatisfactory due to discolouring and delamination issues. The sub-surface of the concrete is defective so that the top layer must be removed for resealing repair.

19. Despite not having lodged or served any expert evidence prior to the contested hearing, during hearing the respondent alluded to 2 quotations he had acquired as to the reasonable cost of carrying out the repairs (see paragraph 4 above). The documents supplied by the respondent on 31 October contained 3 quotes and 23 paragraphs of written submissions even though the respondent had not been directed to lodge further written submissions, only any written instructions he may have given the quoters.

20. However, the written submissions were considered. They reiterated oral evidence the respondent gave during hearing about why he had not lodged an expert report. He restated his desire to carry out repairs. He referred to other services he supplied for the applicant such as putting out her rubbish bins and cutting up a tree. The relevance of this with respect to performance of the contractual works escapes the Tribunal. He reiterated his displeasure at the way the applicant spoke to her and again stated she was overly critical of his work. Each of the quotes was around $6,000.00. This evidence, and the submissions, carried insufficient weight for the Tribunal to alter its finding the contractor has breached implied warranties.

21. In relation to the quantum for repairs, the problem is that at no time in those submissions did the contractor indicate any written instructions he gave to his quoters. Nor did he give them a copy of the expert report of the applicant. Consequently, his quote calculations were done without any reference to the defects found by the applicant’s expert. In particular, the quotes refer to cleaning, resurfacing and resealing the existing works. There is no mention of the top layer being removed. The quotes do not address any remedies for the defective falls / gradient. In his reply submissions on the quotes lodged on 3 November 2023, the applicant’s expert pointed out the same deficiencies in the quotes. The expert also found the quotes were most probably based on photos of the works, not any inspection. With respect to two of the three quotes, neither of the contractors were licensed. An unlicensed contractor cannot conduct repairs for contracts greater than $5,000.00. The expert said the third quote was not a reasonable estimate of the cost to remedy defects found in his report and “pressure cleaning the finished concrete will not remove all of the existing surface and if the surface is resealed the finished paving will present as patchy. Therefore, the whole of the concrete surface will need to be brought back to a consistent texture and colour by grinding before resurfacing, refinishing colouring and sealing”. There was no allowance for this in the contractor’s quotes. The Tribunal is satisfied the cost of repairing defects is as set out in the expert’s Scott Schedule.

22. Applicant also sought the costs of her expert. The Tribunal accepts there is a special circumstance justifying the award of such costs as the applicant was obliged to obtain an expert report given the minimisation of her complaints by the contractor. The expert was also required at hearing. In addition, due to the late submission of the quotes contrary to procedural directions and only after hearing, the expert was required to make further submissions. Total fees of the applicant’s expert were $3,630.00 including the initial report, attendance at hearing to give evidence and further submissions on the quotes.

23. Applicant also sought reimbursement of the cost of her filing fee of $120.00. However, the quantum in dispute was less than $30,000.00. The Tribunal does not accept there is any special circumstance that allows it to alter the standard position that each party bear its own costs.

24. There was no dispute that $5,000.00 for the final instalment was outstanding. The Tribunal is satisfied that works were fully completed. Even though the works have been found to be defective, the applicant has had the benefit of the work done in the period relating to the final instalment. The money order made in favour of the applicant is reduced by that amount.

Order(s)

25. The Tribunal makes the following order:

1. The respondent is to pay the applicant the sum of $16,379.60 immediately.

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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: 13 August 2024