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Castle Constructions (Qld) Pty Ltd v Pourasad[2015] QCAT 17

Castle Constructions (Qld) Pty Ltd v Pourasad[2015] QCAT 17

CITATION:

Castle Constructions (Qld) Pty Ltd v Pourasad [2015] QCAT 17

PARTIES:

Castle Constructions (Qld) Pty Ltd

(Applicant)

v

Kaveh Pourasad

(Respondent)

APPLICATION NUMBER:

BDL199-13

MATTER TYPE:

Building matters

HEARING DATE:

21 – 22 August 2014, 25 September 2014 and 2 October 2014

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Howard

DELIVERED ON:

21 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Kaveh Pourasad must pay to Castle Constructions Pty Ltd the sum of $7499.33 by 4:00pm on 19 February 2015 in exchange for the certificates set out in order 2.
  2. Castle Constructions Pty Ltd must give to Kaveh Pourasad the form 21 final certificate and all associated certificates for the house at 57 Messara Circuit, Durack by 4:00pm on 19 February 2015 in exchange for the payment of the amount in order 1.
  3. Either party may file submissions in support of any claim for legal costs including a detailed breakdown of the costs claimed by 4:00pm on 19 February 2015.
  4. If either party files submissions in accordance with order 3 above, the other party must file its submissions in response by 4:00pm on 12 March 2015.
  5. Any claim/s for costs will be determined on the papers without an oral hearing not before 12 March 2015.
  6. If no submissions are received from a party concerning their claim for costs in accordance with order 3 above, then the application for costs will be dismissed.

CATCHWORDS:

DOMESTIC BUILDING DISPUTE – where builder claim final payment and for costs of variations, as well as interest and costs under the contract – where homeowner counter-claims for damages for rectification and incomplete works – whether homeowner took possession before practical completion – whether contract terminated by builder or homeowner – whether termination under contract or at common law – whether substantial compliance with practical completion – whether variations instructed – whether variations should be approved by Tribunal under Domestic Building Contracts Act 1999 – whether defective or incomplete building works

Domestic Building Contracts Act 1999 (Qld), s 44

Bellgrove v Eldridge (1954) 90 CLR 613

Bettini v Gye (1876) 1 QBD 183

Bolton v Mahadeva [1972] 1 WLR 1009

Cooper v Ungar (1958) 100 CLR 510

D Galambos & Son Pty Ltd v McIntyre (1974) ACTR 10

Hoenig v Isaacs [1952] All ER 176

Holland v Wiltshire (1954) 90 CLR 409

Kelly v Desnoe [1985] 2 Qd R 477

McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457

Nina’s Bar & Bistro v MBE Corporation [1984] 3 NSWLR 613

Quinn Villages Pty Ltd v Mulherin [2006] QCA 433

Shevill v Builders Licensing Board (1982) 149 CLR 620

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Kava Piran, director, Castle Constructions (Qld) Pty Ltd represented Castle Constructions (Qld) Pty Ltd.

RESPONDENT:

Mr Kaveh Pourasad represented himself.

REASONS FOR DECISION

  1. [1]
    This proceeding concerns a domestic building dispute. Essentially, Castle Constructions Pty Ltd (the builder) claims its final payment under a domestic building contract, the costs of variations together with costs of debt collection and interest under the contract. The homeowner, Mr Pourasad, counter-claims for damages for defective and incomplete building work, together with interest and costs under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).

Background

  1. [2]
    On 11 November 2012, Castle Constructions (Qld) Pty Ltd entered into a domestic building contract with Mr Pourasad to construct a single storey brick veneer house at 57 Messara Circuit, Durack. The contract price was $205,300. The contract is a standard form HIA New Home Construction Contract Version QC1 2010.
  2. [3]
    Mr Piran, director of Castle Constructions, says that under the agreement, the house was built by Castle Constructions at cost with no margin for the builder. He says he agreed to construct on this basis for Mr Pourasad because of their friendship, shared heritage and values, and his knowledge that Mr Pourasad did not have significant financial resources and was ‘proudly managing’ in difficult circumstances with a child with a serious medical condition.
  3. [4]
    The contract specified that the contract documents included the architectural plans number NCRT1012 signed by the owner,[1] and the tender.[2] There is a dispute about which set of architectural plans form part of the contract (and this is relevant to whether some items are incomplete). There is also a dispute about Schedule 6 of the tender, specifically whether it was later amended by agreement.
  4. [5]
    The building period provided for in the contract is ‘14 week (sic) plus rain days’ after commencement, subject to clause 16. The commencement date as specified in clause 6 of Schedule 1 is ‘ASAP’ in accordance with clauses 2 and 16 of the contract. It is uncontroversial that the actual commencement date was 17 December 2012.[3]
  5. [6]
    Calculable delays are specified. The building period includes the following allowances:
  1. (a)
     For inclement weather and the effects of inclement weather, 10 days in December, 10 days in January, and 14 days in February;
  1. (b)
     For weekends public holidays rostered days off and other days not generally available for the carrying out of works the contract, 5 days December and January; and
  1. (c)
     For any other matter that is reasonably likely to delay the carrying out of the works, ‘non’ (sic).[4]
  1. [7]
    An allowance was not included for the industry shutdown period (which commences on about 22 December for three weeks each year) which is referred to in the general conditions to the contract,[5] notwithstanding that construction spanning the Christmas period was reasonably foreseeable.
  2. [8]
    No incalculable delays were specified.
  3. [9]
    The tender also refers to and explains the building period.[6] For a house of the size of the one concerned, it specifies, consistently with the contract, a building period of ‘14 weeks plus rain days’. It then goes into an explanation of calculating rain days. The number of days nominated for the months of December, January and February are 11.5, 13 and 14.2 respectively (these are said to be as nominated by the Master Builders Association from Bureau of Meteorology Records). It also says

Plus a reasonable estimate of the follow-on effects due to wet sites we allow an additional 4 days per month due to the sites being inaccessible until they dry out.

  1. [10]
    Various prime cost and provisional sum items and allowances are specified for the contract.[7] The prime cost items include kitchen cabinets at $6,000. Provisional sums specified include $5,000 for concreting the driveway and porch; as well as $2,000 for front landscaping.
  2. [11]
    From 5 February 2013 until some time in April 2013, Mr Pourasad and his wife were overseas visiting family, after the tragic loss of their child in late January 2013. Mr Piran says that immediately before they went, Mr Pourasad visited Mr Piran and gave instructions concerning the works and instructed a number of variations to the contract in respect of items: a solar hot water system, prestige flat tile roof, a quiet motor for the garage door, glass splashback in the kitchen and NBN. Variation documents were not prepared at that time.
  3. [12]
    Mr Pourasad acknowledges visiting to inform Mr Piran that he was going away for an extended period. However, he denies giving any instructions or instructing any variations at this, or any other time, other than in respect of security screens (which are not at issue because they were paid in full), some external concreting (also paid in full and not in issue) and ducted air-conditioning (which was part of contract price rather than a variation).
  4. [13]
    Mr Piran confirms that additional external concreting was instructed, but says that due to delays between the quote being provided to Mr Pourasad and instructions for the concreting to proceed, a delay of some 21 days was occasioned in the building works (because certain plumbing and electrical works could not be completed until it was done).[8] A number of other extension of time claims are also made by Castle Constructions relating to the alleged variations. These include 21 days to re-order a stone top for a vanity unit stolen while the instructions regarding the extra concreting were awaited[9] and five days delay in the owner having the power connected to the site.[10] Mr Pourasad says that the latter delay was caused by Mr Piran failing to provide him with information sooner.
  5. [14]
    Mr Piran asserts that Mr Pourasad unilaterally and without his permission took possession of the works on about 15 May 2013 before practical completion was reached. Mr Piran says that Mr Pourasad was demanding to take possession because he wanted to lay timber flooring (which was not part of the contracted works) and that he did not want to wait until the house was finished. Mr Piran says that he did not agree to this. He says he told Mr Pourasad to extend his lease on his rental premises because the house was not ready. He said that he was concerned that the flooring may be damaged while the house was being finished: he did not want to take responsibility for this possibility. However, he asserts that the homeowner took the (hidden) laundry key from the metre box, and by about a week later, on 15 May 2013, that Mr Pourasad was storing flooring materials in the garage and had started laying the floor. On 16 May 2013, Mr Pourasad told him that he had opened the packets of flooring and commenced laying the floor.
  6. [15]
    Mr Piran says he had been in the process of preparing a defects document listing minor defects and omissions under clause 24 of the contract. He says that when he realised Mr Pourasad had taken possession of the premises, Castle Constructions gave its claim for practical completion (which was dated 16 May 2013) on 17 May 2013.
  7. [16]
    Mr Pourasad says he received the final claim before he moved in. He asserts that he moved in by agreement on 21 May 2013. He produced documents from a removalist showing that his furniture and personal effects were moved on 21 May 2013; and from a real estate agency about the dates he tenanted rental premises, that is, until 21 May 2013. He says that after he received the final claim on 17 May 2013, he telephoned Mr Piran to ask whether he could move in. He says Mr Piran agreed that he could and that he would come back to complete the remaining ‘bits and pieces’. He acknowledges having possession of the front door key from 19 May 2013, when he says Castle Constructions’ subcontractor, Paul Simpson, gave it to him in the presence of a Castle Constructions representative, whom he revealed under cross-examination was Masoud Piran, Mr Piran’s brother. He denies having obtained the laundry key earlier, storing flooring materials and laying flooring in the house until 20 or 21 May 2013.
  8. [17]
    On 7 June 2013, Mr Piran and Mr Pourasad jointly inspected the house for purposes of compiling (and signing) a minor defects list.[11] Ultimately at hearing Mr Pourasad accepted that they met, compiled the list and that he signed the list (initially he contended that Mr Piran would not acknowledge any defects), although he now says that Mr Piran ‘took advantage’ of him by including only minor defect items on the list. According to Mr Piran, a typed copy of the list was subsequently left at the house for Mr Pourasad. Mr Pourasad denies having been provided with a typed copy of the list by Castle Constructions.
  9. [18]
    Although it is common ground that Mr Piran and Mr Pourasad had known one another from at least 2000, the relationship between the parties broke down after Mr Pourasad and his family moved into the home. The final claim was not paid, despite Mr Pourasad requesting that his bank pay it. Mr Pourasad’s bank records that it inspected the house but declined to release the final payment because ‘a number of items including cupboard doors, plastering, painting and a manhole were yet to be completed’.[12] Mr Pourasad says that the inspection by the bank was done on 24 May 2013.
  10. [19]
    Mr Pourasad and persons at his direction and unrelated to Castle Constructions laid the flooring. Mr Pourasad eventually acknowledged that the skirting boards were removed by them; that they cut or broke some of the skirting boards in the process; and that they also made (and did not repair) holes in some walls during this process.
  11. [20]
    Castle Constructions did some further work in June and early July. Mr Piran says, that is, when it could gain access to the premises from the homeowners who were uncooperative. It is uncontroversial that the work included mending some of the holes made in the walls and repainting the walls and skirting (despite Mr Pourasad and his agents being responsible for the damage), installing an antennae and a letterbox. Mr Piran says that by 11 July 2013, all of the defects listed on Exhibit 5, had been completed.
  12. [21]
    A final certificate was obtained by Castle Constructions after Mr Pourasad had moved into the house.
  13. [22]
    The bank was not at any time requested by Mr Pourasad to reinspect and release the final payment. Mr Pourasad says this is because the work was not finished.
  14. [23]
    In late June 2013, Mr Pourasad obtained a building report from Pro-Check which detailed some 96 alleged defects or incomplete items. Through his lawyers, on 11 July 2013 he issued a notice to remedy breach to Castle Constructions, alleging it was in substantial breach for failure to complete the works within the building period and breach of the contractual and statutory warranty to carry out the work in an appropriate and skilful way as evidenced by the building report. The correspondence advised that unless the breaches were remedied within 10 working days, Mr Pourasad intended to terminate the contract. The correspondence indicated that the breaches could be remedied by attending to the 96 items of allegedly defective or incomplete work.
  15. [24]
    In reply, Castle Constructions, through its lawyers, advised that Mr Pourasad had entered into possession of the works in breach of clause 25.1 without the written consent of the builder, and before being issued with a notice that practical completion had been reached. Therefore, it asserted, the consequences in clause 25.3(c) followed. Thereby, it alleged that Mr Pourasad was in substantial breach of the contract and unable to issue a notice to remedy breach. Further, Castle Constructions lawyers asserted that it was thereby released from further completing the works. It also denied any substantial breach of the contract.
  16. [25]
    Castle Constructions did however provide extension of time claim forms, and indicated that it was prepared to perform further work if it received the final payment under the contract, in the sum of $20,530. It also provided various variation documents. It asserted that any alleged defects and incomplete works would have been completed or remedied in the maintenance period had the proper course been followed. That said, if the final payment was made, it offered to discuss completing remedial works. Otherwise it indicated its intention to process a variation and notice of practical completion and commence proceedings against Mr Pourasad.
  17. [26]
    Mr Pourasad responded by purporting to terminate the contract.
  18. [27]
    Castle Constructions then, alleging that the purported termination was invalid and amounted to a repudiation, purported to make an election to accept it and terminate the contract.

The claim and counter-claim

  1. [28]
    Castle Constructions commenced proceedings in the Tribunal. It seeks orders for the payment of its final claim under the building contract in the sum of $20,530 together with the further sum of $14,437.83 for variations, as well as interest under the contract and debt recovery costs under the contract.
  2. [29]
    The variation items claimed are set out in the table below. All of the alleged variations themselves are set out in Exhibit 2 at attachments KP 15, 27, 29, 32 and 35, although there appears to be some double-up. For ease of reference, I have indicated the attachments to Exhibit 2 in which each of them is claimed.

 

List of Variations

Cost

GST

Total

1

Garage door Quiet Motor (KP 15)

$100.00

$10.00

$110.00

2

Prestige Flat Roof Tiles (KP 35)

$2,505.30

$250.53

$2,755.83

3

Upgrading Heat pump to solar HWS (KP 15)

$850.00

$85.00

$935.00

4

Kitchen upgrading to: All Draw (10 Draws) soft close, handle less, 50mm Benchtop 900mm instead of 600mm Island+ Waterfall Glass splashback. Cost excessive to $5,000 (KP 35)

$4,000.00

$400.00

$4,400.00

5

Second Showerhead to Ensuite. Square Ceiling Drop + Mixer + plumbing (KP 15)

$650.00

$65.00

$715.00

6

Upgrade Internal Doors and Architraves From hollow to Solid, and laminated finish (KP 15)

$800.00

$80.00

$880.00

7

Cloths line (KP 32)

$285.00

$28.50

$313.50

8

Driveway extra to provisional sum (KP 32)

$1,265.00

$126.50

$1,391.50

9

Upgrading Mirrors to Frameless (KP 15)

$220.00

$22.00

$242.00

10

Upgrading shower screen to semi frameless and (IN/OUT) Pivot door (KP 27)

$150.00

$15.00

$165.00

11

Custom-made Laundry Door 2400mm Height to match int. And Toughen Glass (KP 27)

$470.00

$47.00

$517.00

12

Four Extra, External Lights LED (KP 27)

$360.00

$36.00

$396.00

13

NBN (KP 27)

$650.00

$65.00

$715.00

14

Extra Retaining wall at Front Landscape (KP 32)

$300.00

$30.00

$330.00

15

Neighbourhood Rubbish Removal (KP 32)

$520.00

$52.00

$572.00

 

 

 

Total

$14,437.83

 

  1. [30]
    Mr Pourasad opposes the application. He seeks a declaration that he validly terminated the contract. He also seeks orders requiring the delivery up of the Form 21 final certificate and all related certificates of inspection, as well as damages for completion of the works and rectification of the alleged defects items (identified by Mr Fry) in the sum (which he clarified at hearing) of $150,700, although his final submissions suggest it is $153,700. He also seeks interest under the QBCC Act, as well as legal costs.

Areas of Agreement

  1. [31]
    There is very little agreement between the parties. Indeed, before the hearing commenced, Mr Piran and Mr Pourasad did not agree on the date of the contract, despite it being dated, or the date of commencement of the works.
  2. [32]
    However, at the commencement of the hearing the parties agreed that (in the event that the homeowner is able to successfully claim damages), about a small number of defect items and, in some cases, the reasonable cost of same.[13] The agreement reflects the outcomes of the expert conclave, as follows:

Item No.

Brief Description

Cost

3.1

Small woodwork items including architrave refitting

$650

3.14

Replace vanity unit (although the cost of the rectification is not agreed and the estimates range from $1,500 and $500)

Not agreed

5.0

Kitchen door

$1,000

5.2(9)

Kitchen : Gaps between the kickboards to be rectified

Not agreed

8.1

Render garage wall

$1,900

8.4

Storm moulds front door to be refitted

$250

8.6

Render ensuite windows

Not agreed

8.9

External control joints require mastic jointing

$1,200

 

Issues concerning the evidence and credit of the witnesses

  1. [33]
    Mr Piran and his wife, Ms Abdi Puya, who is a designer for Castle Constructions, provided witness statements to the Tribunal. They were cross-examined at the hearing. I found them to be impressive witnesses. They gave straight-forward answers and the evidence each of them gave was consistent with their own other evidence, as well as the documentation before the Tribunal.
  2. [34]
    During the hearing, Mr Piran tendered an email trail and attached unsigned statement of Paul Simpson,[14] carpenter, whom he said was overseas. The emailed unsigned statement tends to support Mr Piran’s claims that Mr Simpson did not give the front door key to Mr Pourasad at the request of the builder. Rather, he handed it over on Mr Pourasad’s request because he saw that Mr Pourasad already had access to the site through the laundry door and therefore, he thought it was not a concern. However, Mr Simpson was not available for his evidence to be tested and, in the covering email Mr Piran suggests a need to ‘say the same story’, although he says Mr Simpson should add anything else he thinks is relevant. These factors affect the weight which I consider Mr Simpson’s ‘statement’ should be given. In the circumstances, I have given it no weight.
  3. [35]
    I found Mr Pourasad was generally not an impressive witness. He recanted on his own earlier evidence on a number of issues. Initially, he accused Mr Piran of ‘fraud’ for providing a different set of plans (Exhibit 3) than the set he had (Exhibit 12). However, subsequently when Mr Piran produced an email from the certifier (Exhibit 17) to the effect (although in rather vague terms) that copies of all documents were forwarded by it to Mr Pourasad, he then said essentially that he did not know what documents he had received. He did ultimately acknowledge that he may also have received other documents from the certifier, including the geotechnical report at Exhibit 16.
  4. [36]
    Also, he asserted at some stage that the builder had denied that there were any defects and just wanted his final payment. He subsequently admitted that his signature appeared on Exhibit 5 dated 7 June 2013, being the list of defects prepared by Castle Constructions but asserted he had not seen it or been given a copy until the first day of the hearing. I do not accept this. As he signed it, he must have been aware of its existence at 7 June 2013.
  5. [37]
    He denied requesting any variations other than those already paid for. He says if he had, he would have paid for them immediately, as he did with those items conceded. Yet during the hearing, he conceded that NBN, solar HWS, a prestige flat tile roof and a special quiet motor for the garage were provided although not part of the contract. In respect of the NBN, he simply said he did not know why it was done and requested ‘the proof’ that it was requested. Because I accept Mr Piran’s evidence generally in preference to Mr Pourasad’s evidence and given that he had agreed to build the house under the contract for Mr Pourasad without a profit margin, I am satisfied that it is highly improbable that Mr Piran decided without instruction to include those more expensive items. With the exception of the clothesline and the rubbish removal (which is discussed later), I accept that Mr Pourasad did request the variations which Mr Piran and Ms Abdi Puya attest to.
  6. [38]
    Further, as Mr Pourasad’s evidence progressed, it was revealed that the Castle Construction representative whom he claimed was present when Paul Simpson allowed him to have the front door key on 19 May 2013 was Masoud Piran, Mr Kava Piran’s brother. Masoud was a personal friend of Mr Pourasad, with whom he had shared rental accommodation many years ago and who (to Mr Pourasad’s knowledge) worked as a taxi driver. Masoud Piran had apparently done some painting as a labourer for Castle Constructions in January 2013. Otherwise, he had no connection to Castle Constructions. Mr Pourasad was well aware of this: when Masoud attended on 19 May 2013, he attended as a friend to Mr Pourasad, not a representative of Castle Constructions. I consider that Mr Pourasad was disingenuous in stating that a representative of Castle Constructions was present and that he intended to mislead by describing Masoud Piran as a representative of Castle Constructions.
  7. [39]
    His evidence about how damage to the skirting boards and paintwork occurred was also revealing. He initially denied sending photographs to Mr Piran of damage done (by him and his agents) during laying of the floor when removing and replacing the skirting. Mr Piran produced a text message to himself, which Mr Pourasad subsequently acknowledged he had sent, which included the photographs (Exhibit 15). Mr Pourasad also initially said that he personally had not done any of the work, that he had hired a handyman to do it. Later, he acknowledged having personally done some of it, although he said only in the second bedroom.
  8. [40]
    Ultimately, he acknowledged that some of the skirting boards had been cut during the process of removing it to lay the floor or refitting it, and that holes in the plaster and damage to the paint caused in the process, had not been fixed by him or the other persons involved. He suggested (inconsistently with his earlier assertions that if he had instructed variations, he would have paid cash up front for them) that this was because he could not afford to pay the other persons any more, so he finished it. He asserted that he did some painting and later said also that the only damage caused by the floor laying was in the photographs, nowhere else in the house.
  9. [41]
    However, the expert reports suggest damage and other problems with the skirting boards in a variety of rooms. It seems more probable than not that the rather inexpert floor-laying done by Mr Pourasad and his agents was the cause of the damage of this similar type in each of the rooms in which it is an issue. As discussed earlier, the skirting boards are also included in the Exhibit 5, as items to be attended to by Castle Constructions, as Mr Piran says.
  10. [42]
    At one stage, Mr Pourasad denied that Castle Constructions did any further works after the Pro-Check report was obtained, but later agreed in cross-examination that it had. He acknowledged that the letterbox and antennae installation had been subsequently done. At this point, he said that it was only after the Pro-Check report was sent to Castle Constructions that no further work was undertaken by them.
  11. [43]
    Because of the inconsistencies in Mr Pourasad’s evidence and the misleading evidence revealed by cross-examination, I concluded that he is an unreliable witness. Wherever his evidence is inconsistent with Mr Piran’s and Ms Abdi Puya’s evidence, I accept Mr Piran’s and Ms Abdi Puya’s evidence.
  12. [44]
    On the final day of the hearing, Mr Pourasad tendered a witness statement (Exhibit 66) of Nivin Nader, his wife. She had not provided any earlier witness statement. Ms Nader was not made available for cross-examination. It was dated 23 September 2014, and addressed one issue only which had been the subject of disagreement amongst the expert witnesses. Because of its lateness and because it was unable to be tested, I have given it no weight although in any event it would not have affected the outcome.
  13. [45]
    The expert witnesses, Bruce Moore and Michael Fry, are both builders of a significant number of years (43 and 25 years respectively) experience. Mr Moore also has qualifications as a quantity surveyor. Mr Fry is also a licensed pest inspector. Mr Fry’s experience, as described at hearing, appears to have been more in commercial rather than domestic building construction until about 2008, when he commenced business as a building and pest inspector. Since 2008, the bulk of his work appears to have been residential. He was previously a carpenter until obtaining registration as a builder. Mr Moore commenced trading as Building Surveys Australia in 1994, and has conducted work as a building inspector and quantity surveyor in that entity. His says that residential work comprises the majority of his work. He is not a registered pest inspector.
  14. [46]
    Both Mr Moore and Mr Fry provided reports to the Tribunal. They were directed to attend an expert conclave prior to the hearing, and required pursuant to Practice Direction 4 of 2009 to prepare a joint report setting out the areas of agreement and disagreement. Unfortunately, the anticipated joint report was not filed. Both filed separate reports which they each confirmed at the hearing included a narrative of the confidential discussions held at the conclave.[15] Those reports containing the narrative were not accepted into evidence. At the hearing, Mr Pourasad attempted to tender yet another Scott Schedule prepared by Mr Fry sometime in July 2014. However, this was prepared after the expert conclave and was not accepted into evidence at this late stage either.
  15. [47]
    I make the observation that Mr Fry’s report prepared after the conclave which had been filed but which was not accepted into evidence attached some 400 plus photographs. Some of the photographs were tendered at the hearing and are exhibits in the proceeding.
  16. [48]
    It was ultimately agreed by Mr Moore and Mr Fry, who gave their evidence in the proceeding concurrently, that an amended version of Mr Moore’s report filed on 25 July 2014 after the conclave, with the two most right-hand columns deleted, properly set out the outcomes of the conclave. That is, it sets out the areas of agreement and disagreement without recording any confidential discussion. In the far left-hand column it recites the details of the defect as originally specified/alleged by Mr Fry. It also summarised the earlier comments of both of them in their pre-conclave reports.
  17. [49]
    It was also agreed that the total on page 14 of $107,900 is incorrect as changes were made by Mr Fry to dollar amounts in his ‘expected cost’ column which make the total $150,700. This reflects only Mr Fry’s current estimate of what he says rectification or completion may cost. Although Mr Moore agrees that the column totals $150,700, he does not otherwise agree with the estimated costs except where indicated. Mr Moore’s estimates are set out in his comments, although not separately totalled. That said, at the hearing additional evidence was received about some costs estimates, as it was apparent that Mr Moore and Mr Fry had different understandings about what the earlier estimates included in some cases.
  18. [50]
    The amended report (photocopied by the Tribunal to exclude the two most right-hand columns) is Exhibit 21.
  19. [51]
    Mr Fry’s report (Exhibit 20) is highly repetitive and appears to contain clauses which are suggestive of use of standard or precedent clauses and paragraphs. During the hearing, although Mr Fry asserted that all other comments in his report were applicable to this particular property, conceded that his comments about the weep holes in Item 8.0 were from a precedent and not about this particular property.
  20. [52]
    At times, Mr Fry’s behaviour while giving his oral evidence during the hearing was of concern. At one point, he threatened Mr Piran, suggesting that he ‘Come and say that to me in the street’ or words to that effect. He was somewhat dogmatic in the views he presented. Both experts made some concessions, but Mr Fry only when presented with documentary evidence to refute his expressed views, and even then sometimes not.
  21. [53]
    He also added belated but significant evidence which then could not be tested by Mr Moore. For example, in relation to alleged defect item 1, although it had not been referred to in his report and not mentioned by him in his oral evidence when asked by me to explain the issue, subsequently in response to Mr Piran’s suggestion that there was not a water leak, Mr Fry alleged he had very recently seen a water leak as a result of the allegedly defective configuration of the roof tiles.
  22. [54]
    He demonstrated a general lack of professional judgment. For example, he included items which he said required remedial works which he acknowledged during the hearing were contractual matters (that is, the items were not strictly in accordance with the contract specifications but were not defective), rather than defective. He also presented views of alleged requirements under the National Construction Code (NCC) and the Australian Standards (AS) which were either inconsistent with the sections of those documents relied upon, or not supported by them.
  23. [55]
    Both experts to some extent, inconsistently with the duty of an expert to provide independent evidence to the Tribunal, but most particularly Mr Fry, demonstrated a partisan attitude. In this regard, Mr Moore occasionally put forward his client’s instructions in response to questions about alleged defects, although these generally related to alleged variations to the contract and he disclosed that these were his instructions. Mr Fry however appeared partisan in a broad manner. For example, by threatening Mr Piran as discussed above; by adding late significant evidence which could not then be tested; and by putting his opinions to the roof supplier about the roof being defective, rather than making the enquiries of a supplier that an expert may legitimately make.[16]
  24. [56]
    Mr Fry proffered and relied upon a Queensland Building and Construction Commission publication, ‘Standards & Tolerances’, published May 2014 (Exhibit 22). Mr Fry asserts that it sets out what is in the AS. However, it provides only limited reference to the AS and their content. Also, the guide itself specifically says that where it is inconsistent to the AS, the AS (of course) take precedence. Having regard to my expressed reservations about the usefulness and reliability of the guide, Mr Fry on a later day of the hearing then presented extracts from several AS which became exhibits in the proceedings. His initial insistence that the guide was sufficient for the Tribunal’s purposes and his own apparent reliance on it, rather than the AS themselves, cause me concern. In any event, as I indicated earlier, I do not accept his interpretation of some of the extracts provided.
  25. [57]
    I concluded that Mr Fry did not provide the Tribunal with independent expert opinion, rather he has adopted the role of advocate for Mr Pourasad and was unable to be objective about the subject matter. Accordingly, I have generally given his evidence less weight than I have given Mr Moore’s.
  26. [58]
    That said, Mr Fry had inspected some items which Mr Moore had not. For example, he had climbed onto the roof to inspect the tiles and inspected every window and reached the view that eight in all needed attention. Mr Moore had not climbed onto the roof and based his opinion on about the roof tiles on photographs taken by Mr Fry. Nor had he inspected each and every window. Although I have reservations about Mr Fry’s evidence generally, I have accepted Mr Fry’s evidence in respect of items about which there is no inconsistent evidence from Mr Moore unless there are reasons for not doing so in respect of a particular item.
  27. [59]
    Mr Moore is a quantity surveyor. Mr Fry is not. Accordingly, I am satisfied that Mr Moore has greater expertise in estimating the costs of completion or rectification. I have accordingly preferred Mr Moore’s views about the estimated costs. However, it must be said that there were significant areas of agreement about what the cost would be if Mr Fry’s evidence about the items being defective was accepted.
  28. [60]
    Mr Fry is a registered building and pest inspector and Mr Moore is not. Mr Pourasad submits that he is better qualified to give an opinion. I do not accept this a general proposition, given Mr Moore’s experience. Further, I do not accept it in this case particularly because of Mr Fry’s obviously partisan attitude and his errors in interpreting the requirements in the NCC and AS.

The issues for determination

  1. [61]
    The key issues which I must determine are as follows:
    1. What was agreed between the parties: the issues concerning the plans and Schedule 6 of the tender?
    2. When did Mr Pourasad take possession?
    3. Who terminated the contract?
    4. Is Castle Constructions entitled to recover the final claim of $20,530?
    5. Were there any variations? If they were not documented as required under the contract, should any variations be allowed by the Tribunal under the Domestic Building Contracts Act 2000 (DBC Act)? If so, how much should be allowed for those items?
    6. Is Mr Pourasad entitled to claim for incomplete and/or defective works, are there any defective and/or incomplete works? If so, what is the measure of damages?

The contract documents: the plans and schedule 6 of the tender document

  1. [62]
    There is an issue about which set of architectural plans drawn by Alan Sullivan Pty Ltd for Castle Constructions and both dated 5 October 2012 are the operative contract documents, Exhibit 3 or Exhibit 12.
  2. [63]
    The plans vary in several respects. When the parties signed the contract, Council approval had not been sought or granted. The original plans are Exhibit 12. The contract in item 5A obliged the builder to obtain Council approval. Exhibit 3 bears the endorsement of Council approval on 11 December 2012. Exhibit 12 attaches a contour survey which does not appear at Exhibit 3. At page 2, Exhibit 3 includes only one blade wall in the study, whereas Exhibit 12, contains two blade walls. The only other difference of which I was informed was relocation of the water tank from one side of the house to the other (page 1/1 in each case). The latter is not a matter of dispute.
  3. [64]
    Mr Piran says that he and Mr Pourasad discussed the blade walls. He says it was agreed to include only one in the plans for Council approval (and add a second later if Mr Pourasad wanted it), rather than the other way around which he says is a more difficult process once Council approval had been obtained. Mr Piran says that he included only the cost of one blade wall in the contract price as requested by Mr Pourasad. Mr Piran suggested to Mr Pourasad that one blade wall would delineate the study area, while allowing natural light to enter from the lounge room. Mr Pourasad denies that this was the case, although he acknowledged the other change to the plans was agreed, that is, that the water tank was to be moved to the other side.
  4. [65]
    As discussed above, I found Mr Pourasad’s evidence generally unreliable and accept Mr Piran’s plausible explanation for the minor changes to the plans regarding the blade walls. I find that it was orally agreed at the time the contract was signed that the plans were to be amended in these minor respects before Council approval was sought. This agreement is not a variation to the contract, it was part of the contract terms agreed orally. It should have been documented at the time the contract was signed, but it was not. That said, in light of my findings, it follows that Exhibit 3 embodies the works as agreed.
  5. [66]
    A version of Schedule 6 of the tender document[17] was signed by Mr Piran several days after the parties signed the contract, on 14 November 2012. All of the listed items were to be included as extras free of charge. Mr Piran says that after further discussions, the list of items in Schedule 6 was amended to accord with later agreement reached between him and Mr Pourasad about the extras. It appears that the later created version was not signed at any stage.[18]
  6. [67]
    The original Schedule 6 included at Item 14, ‘upgrade standard bath tub to jaccuzzi spa’. The later produced Schedule 6 does not contain reference to this item. There are also other differences. Mr Piran suggested to Mr Pourasad that the list was changed by agreement, for example, because the bathroom was too small to accommodate a Jacuzzi spa. Also, he suggested that the arrangement was for Mr Pourasad to have items to the same value. For example, instead of 19 extra ceiling down lights, he could elect to have other electrical work, such as additional double power points, to an equivalent value. Mr Pourasad denies any later agreement to change the list and denies the agreement that he could have other items to equivalent value. In respect of the Jaccuzzi spa, he said he did not know whether it would fit.
  7. [68]
    Neither party suggests that there are any other relevant versions of the tender document, other than the two referred to. Therefore, it is reasonable to infer from the evidence of both Mr Piran and Mr Pourasad that the tender document attached to Exhibit 11, is the document which existed at the date that the contract was signed by them, that is 11 November, 2012, although at that stage, it was, it seems, an unsigned document. Although there is no provision for it to be signed by the homeowner, ‘Kaveh’ has been written on each page next to ‘initials’.
  8. [69]
    If Mr Piran’s version of events is accepted, the later agreement was a variation to the contract. Although the contract price was unaffected, a variation document should have been prepared by Castle Constructions for signing by both parties in accordance with clause 19 of the contract and the Domestic Building Contracts Act 2000 (DBC Act). Exhibit 2 attachment KP 6 is itself some evidence of the alleged variation, although not expressed as a variation document and not signed by the parties as required.
  9. [70]
    Mr Piran’s explanation is plausible. It makes sense that if a Jacuzzi could not fit because of the size of the bathroom (which seems more probable than not: see discussion about Item 3.8 in Annexure 1 to these reasons for decision), that the parties would agree to amendment as Mr Piran suggests.  Mr Pourasad does not make a claim about the Jacuzzi.  Given his extensive claims of incomplete and defective works, it is reasonable to infer that he would have done so, if he considered it was agreed that he receive it. Also as explained earlier, I found Mr Piran’s evidence more compelling and Mr Pourasad’s evidence unreliable. Therefore, although a variation document was not prepared, I find that Schedule 6 was amended by agreement between the parties and that the final agreed version appears at Exhibit 2 at attachment KP6.

When did Mr Pourasad take possession? Was he entitled to do so?

  1. [71]
    Clause 24 of the contract provides for practical completion, at which time the builder may render the claim for the final stage payment under the contract. Under clause 10, the builder is entitled to exclusive possession of the site. Under clause 25 (especially 25.1 and 25.3), the owner is not entitled to take control of, possession of or use the works or any part of them or receive the keys, until the builder has been paid the contract price (adjusted for variations) without the builder’s written consent, unless the owner has lawfully terminated the contract. The consequences of taking possession before payment are further discussed later, but if the owner does so, the owner commits a substantial breach of the contract: clause 25.3.
  2. [72]
    Mr Piran says that Mr Pourasad had been demanding to move in because he wanted to install the flooring, but that he refused to give permission. He said he told him not to store the flooring in the house as things had been going missing (such as a vanity top, as earlier discussed) and that he did not want the flooring installed until after the house was finished. He was concerned that his contractors may scratch the flooring while finishing the house. However, Mr Piran says essentially that he discovered that by 15 May 2013 that Mr Pourasad had helped himself to the laundry key and was storing flooring items in the house. On 16 May 2013, Mr Piran says that he had a conversation with Mr Pourasad about the flooring when Mr Pourasad told him that he had already opened the packs and commenced installing it. He says Mr Pourasad took this action unilaterally and without his permission and in the face of Mr Piran’s opposition to it. The final claim was then prepared and given by Castle Constructions to Mr Pourasad on 17 May 2013. Mr Pourasad says he did not move in until 21 May 2013 and that he did not store anything in the house until then.
  3. [73]
    I accept Mr Piran’s evidence, and I reject Mr Pourasad’s evidence for the reasons earlier given. I accept that Mr Pourasad took a key for the premises stored onsite by the builder and commenced storing flooring items in the house by 15 May 2013. I am also satisfied that he commenced laying the flooring by 16 May 2013. I find that Mr Pourasad’s acts amounted to taking possession of and using the works. I find that Mr Pourasad did not have the permission (either oral or written) of the builder to take possession of or use the works when he took these steps.
  4. [74]
    Practical completion had not been reached and Castle Constructions had not rendered its final account when Mr Pourasad took possession of and used the works on and from 15 May 2013. A notice of practical completion and the final claim had not been given to Mr Pourasad under clause 24 of the contract and the final claim had not been paid. Therefore, Mr Pourasad was in breach of clause 25 of the contract.
  5. [75]
    When a homeowner takes control, possession of or uses the works contrary  to clause 25, clause 25.3 of the contract entitles a builder to elect to either:
    1. Treat the owner’s action as repudiation of the contract and elect to accept it;
    2. Give the owner notice to remedy breach under clause 27 of the contract;
    3. Accept the owner’s actions as a variation to omit that part of the works not carried out and completed as at the date the owner breaches under subclause 25.1.[19]
  6. [76]
    Under clause 25.6 if the builder accepts the variation under clause 25.3(c) as above, the builder is to give to the owner a variation document to that effect and a notice of practical completion and final claim. Clause 25.7 deems the builder discharged and released from all liabilities costs, losses and damages which the owner may suffer related to works omitted under paragraph (c) of clause 25.3.
  7. [77]
    I accept that Castle Constructions rendered its final claim on 17 May 2013. However, it took no action under clause 25.3. Indeed, at that stage, Castle Constructions through Mr Piran continued to act as though the contract remained on foot. Mr Piran compiled a minor defects list. He met with Mr Pourasad at the house on 7 June 2013. They considered the minor defects list, added to it and both signed it on that date.
  8. [78]
    Castle Constructions attended at the house and did some works subsequently. It appears that some was done in June 2013, but it continued into July 2013, after the Pro-check report had been obtained, although before it was given to Castle Constructions.

Who terminated the contract?

Was the notice to remedy breach validly given by Mr Pourasad?

  1. [79]
    On 11 July 2013, lawyers for Mr Pourasad wrote to Castle Constructions purporting to issue a notice to remedy breach alleging substantial breach for failure to complete within the building period and failure to carry out the work in an appropriate and skilful way.
  2. [80]
    Mr Piran says that all agreed defects in Exhibit 5 had been attended to by that date.
  3. [81]
    In any event, because Mr Pourasad took possession contrary to clause 25.1, he committed a substantial breach of the contract. Under clause 27.7, a party who is in substantial breach is not entitled to give a notice to remedy breach and a notice given by a party in substantial breach is ineffective. I find that Mr Pourasad was in substantial breach at the time he gave the notice to remedy breach and that it was therefore ineffective.
  4. [82]
    Having come to this conclusion, I do not need to decide whether Castle Constructions had failed to complete within the building period. However, in case I am wrong (and in case the decision is appealed) I make the following observations. The building period is poorly and confusingly expressed in the contract as 14 weeks plus rain days. On its face, it appears that the rain days is a reference to rain days specified as calculable delays (34 days). However, calculable delays are under the contract specified to be delays included in the building period.
  5. [83]
    However, it is uncontroversial that the tender document is a contract document. It contains further information about what the parties agreed. It suggests (ignoring the small disparity between the rain days referred to in the two documents) that the rain days were not intended to be included (as calculable delays) in the building period, rather that they are in addition to the 14 week period. This is consistent with the actual words used in item 10 of the contract specifying the building period, that is, ‘14 weeks plus rain days’.
  6. [84]
    If it was necessary for me to resolve this inconsistency, I would be satisfied that the building period agreed was 14 weeks plus 34 days. That is, 18 weeks and six days (or 132 days in total). This means completion was due on 30 April 2013. Of course, this excludes any extensions of time for any claimable delays (including for agreed variations) under clause 16 of the contract. The builder claims a variety of extensions of time, including 21 days for the delays associated with the homeowner’s instructions for the extra concreting and 21 days to replace the stolen vanity top. These are reasonable claimable delays. These two delays (without considering other extension of time claims) would extend the time for practical completion under the contract past the date on which Mr Pourasad took possession or used the premises on 15 May 2013; and also past when the defects list was agreed between the parties on 7 June 2013.
  7. [85]
    Irrespective of this, the contract does not contemplate that late completion represents a substantial breach. It provides specifically for late completion damages in the event that the building period is exceeded in item 11 and clause 31. As a matter of construction, I am satisfied that damages are the remedy for late completion under the contract. However, if the delay was of inordinate length, a common law right to terminate may arguably arise. However, in this case, the delay is of at most several weeks duration.
  8. [86]
    Was Castle Constructions in substantial breach if it failed to do the work in an appropriate and skilful manner? The contract (in clause 35) and the DBC Act[20] provides for a warranty that the works will be carried out in an appropriate and skilful manner. If the works are not done in accordance with the warranty, a homeowner is entitled to damages, but is not generally entitled to terminate the contract.[21]

Termination of the contract?

  1. [87]
    Mr Pourasad purported to terminate the contract by correspondence dated 5 August 2013. Under the contract, he was entitled to terminate only after giving a valid notice to remedy breach. I have found that because he was in substantial breach of the contract, he was not entitled to give a notice to remedy breach. Therefore, it follows that he was not entitled under the contract to give a notice ending the contract.
  2. [88]
    For the sake of completeness, I make the observation that the building contract does not expressly or impliedly exclude the common law right to terminate the contract. Indeed, clause 27.9 appears to preserve operation of the common law by providing that if a party breaches (including by repudiation) the clause does not prejudice the other party’s right ‘to recover damages or exercise any other right or remedy’.[22] Accordingly, I am satisfied that as a matter of construction, the common law right to terminate the contract was not excluded.[23]
  3. [89]
    At common law, if one party renounces his or her liabilities under a contract demonstrating an intention to no longer be bound or to fulfil it in a manner substantially inconsistent with its obligations, then an innocent party is entitled to accept the repudiation and terminate the contract.[24] All of the circumstances relevant to performance may be taken into account in deciding whether there has been a repudiation. A party that is in breach of a contract may still accept repudiation by the other party, provided that it has not itself repudiated the contract.[25] However, a party cannot take advantage of its own non-compliance with the contract.[26] If there is a causal relationship between the breach by the party purporting to terminate and the default of the other party, a presumption operates that a party can not take advantage of their own default to terminate.[27]
  4. [90]
    The facts as I have found them do not reveal that Mr Pourasad had a basis at common law to terminate the contract at 5 August 2013.
  5. [91]
    Then by correspondence dated 8 August 2013, Castle Constructions’ lawyers wrote to Mr Pourasad stating that it accepted his repudiation of the contract, elected to terminate the contract and that it was now relieved from its obligations under the contract and to perform it further. Castle Constructions submits that the election was made by it under clause 25.3, asserting that it is entitled under clause 25 to receive its contract price and under clause 25.7 is deemed discharged and released from all liabilities, costs and other damages suffered by the owner which relate to the works omitted.
  6. [92]
    I find that Mr Pourasad’s purported termination was a repudiatory act. Castle Constructions was entitled to accept it at common law, and terminate the contract. Mr Pourasad’s earlier act of taking possession without permission before practical completion was also a repudiatory act, which Castle Constructions was entitled to accept under clause 25 of the contract. It is somewhat unclear from the correspondence of 8 August 2013 whether Castle Constructions intended to terminate at common law or under clause 25.3.
  7. [93]
    Clause 25.3 provides a number of options to a builder if a homeowner takes possession before practical completion. Castle Constructions letter of 26 July 2013 indicates an intention to terminate pursuant to clause 25.3(c) and process a variation and notice of practical completion unless the final claim is paid. The letter of 8 August 2013 does not attach such a variation and notice of practical completion, and nor is there any evidence to suggest these were separately given by Castle Constructions to Mr Pourasad. In any event clause 25.3(a) entitles a builder to treat the taking of possession as a repudiatory act which it may accept.
  8. [94]
    However, the letter of 8 August 2013 refers to accepting Mr Pourasad’s repudiatory act of giving an invalid notice of breach and subsequent invalid notice of termination amounting to a repudiatory act, which Castle Constructions accepts, (rather than accepting the act of entering into possession as the repudiatory act under clause 25). This tends to suggest a repudiation at common law. The right to repudiate at common law is preserved by virtue of clause 27.9 which preserves other rights and remedies in the case of breach including repudiation, other than those available under the contract.
  9. [95]
    I find that Castle Constructions terminated the contract at common law by its letter of 8 August 2013, because of the repudiatory act of purported termination by Mr Pourasad. As a consequence, clause 25.7 which would deem the builder discharged and released from all liabilities, costs, losses and damages suffered by the owner related to the works omitted under paragraph (c) of clause 25.3 does not apply.

Is Castle Constructions entitled to its final claim of $20,530?

The legal consequences of termination by Castle Constructions at common law

  1. [96]
    After termination for repudiation, the parties are relieved of their obligations under the contract from that time.[28] Obligations, other than accrued obligations, are therefore discharged. After discharge, only unconditionally acquired rights are enforceable.
  2. [97]
    A defaulting party may be entitled to damages for a prior breach by an innocent party. Instalments of contract price are recoverable if they have unconditionally accrued before termination.
  3. [98]
    A contractor, even if in breach of the contract, is generally entitled to recover if work for an instalment is substantially complete, subject to a set-off for defects in the performance.[29] Where the defect(s) are serious and the cost of rectification is significant compared to the contract price, the conclusion may be reached that a party has not substantially complied with his or her obligations: it is a question of degree.[30]
  4. [99]
    Damages for completion and rectification of building work are generally assessed as the difference between the contract price and the cost of making the work conform with the contract.[31] However, that general rule is qualified: the work to produce conformity must be a reasonable course to adopt.[32] In respect of defective work that the cost to remedy is unreasonable and defective work which can not be remedied, then the measure of damages respectively becomes diminution in value of the property and damages for loss of amenity.[33] Damages to remedy defective work which can reasonably be remedied is the reasonable cost of doing so.

The final claim of $20,530

  1. [100]
    If the right to payment for the final instalment unconditionally accrued before termination, Castle Constructions is entitled to recover it.
  2. [101]
    Mr Pourasad’s financing bank inspected the property on 24 May 2013 but declined to pay the final payment, but pointed only to minor omissions and defects as the reason. It says its valuer assessed that ‘a number of items including cupboard doors, plastering, painting and a manhole were yet to be completed’.[34]
  3. [102]
    There is no evidence to suggest that a notice of practical completion was given at any time as required under clause 24 of the contract. However, Mr Piran says and I accept, that despite Mr Pourasad taking possession of the site on 15 May 2013, Castle Constructions, continued preparation of the list of minor defects and omissions, which he had commenced preparing in expectation that practical completion would soon be reached, as required by clause 24 of the contract. Mr Pourasad had already taken possession of the premises from 15 May 2013. Mr Piran made arrangements, despite apparent reluctance on Mr Pourasad’s part, for them to meet and go through the minor defects list. They did so eventually on 7 June 2013. The list as amended and signed by the parties is Exhibit 5. Mr Pourasad was apparently satisfied with the list at that stage, although he now says the Castle Constructions took advantage of him when preparing the list.
  4. [103]
    It is common ground that Castle Constructions undertook items on the minor defects list (finishing them by 11 July 2013), even though, as Mr Pourasad concedes, some of them (some holes in the plaster above the skirting boards in a variety of rooms) related to defects caused by Mr Pourasad and his agents while laying the flooring. It is then common ground that once Castle Constructions received the ProCheck Report it did no further work at the premises.
  5. [104]
    I find that Castle Constructions rendered substantial compliance with the contract to the practical completion stage, although practical completion was ultimately not achieved in accordance with the terms of the contract. Further, I find that it is entitled to payment for the final stage payment in the sum of $20,530.

The claim for variations by Castle Constructions

  1. [105]
    Castle Constructions alleges the variations set out earlier. It acknowledges that the variation documents were not signed by Mr Pourasad. It contends that all of the items were instructed by Mr Pourasad save item 15. For the reasons earlier outlined, I accept Mr Piran’s evidence about these matters and accept that Mr Pourasad did instruct variations as set out in items 1 to 14, with the exception of the clothes line which is variation 7.
  2. [106]
    There was some confusing evidence about the clothes line, and whether the homeowner was dissatisfied with the clothes line initially provided. However, the tender document[35] includes a clothes line. There are no particular specifications for it. Nor do I have evidence about the particular clothes line provided. However, I do not have evidence which satisfies me that the clothes line provided was not the clothes line included in the contract. I dismiss the claim for variation 7.
  3. [107]
    Mr Pourasad submits that the tender includes some of the other claimed variation items, namely variations 3 and 6. However, on my reading of that document it does not. He also submits that front landscaping is included, and as I understand the submission, suggests on that basis that some other variation item or items were included items as part of the landscaping. However, it is not apparent which variation/s in particular he suggests was/were covered by the front landscaping for which a provisional sum of $2,000 was allowed.
  4. [108]
    The variation item 4 concerning the costs of the kitchen in excess of $5,000 provided for in prime costs items is in error. The sum included in the contract is $6,000. Therefore, if approved, the amount recoverable is $3,000 plus GST of $300.
  5. [109]
    Item 15 is for rubbish removal. Mr Piran says item 15 was required because Mr Pourasad failed to attend to requested rubbish removal (of items placed on the site by neighbours or Mr Pourasad) and he had to make arrangements for it, if works were to be able to continue. I accept that the rubbish removal was necessary for works to continue.
  6. [110]
    Castle Constructions failure to document the variations in accordance with the contract means that it may only recover the costs of the variations in accordance with s 84 of the DBC Act.
  7. [111]
    The variations sought by the homeowner must be considered under s 84(2) and (4), and a builder may only recover an amount for the variation with the Tribunal’s approval. In respect of variation item 15 sought by the builder, the builder may only recover in accordance with s 84(3) and (4). Section 84(4) provides that the Tribunal may only approve recovery if there are either, exceptional circumstances or the builder would suffer unreasonable hardship, and (in either case), it would not be unfair to the building owner for the contractor to recover the amount.
  8. [112]
    I find that Castle Constructions has done the work, incurring costs in doing the work in variation items 1-6 and 8-14. Especially since I am satisfied that construction was undertaken by Castle Constructions without any profit margin, and in light of my findings as to the facts set out earlier, I find that in respect of these items, that the builder would suffer unreasonable hardship by the operation of s 84(2)(a). The variation items were instructed by Mr Pourasad. I find that it would not be unfair to the building owner for the builder to recover the amounts. Accordingly, I am satisfied that Castle Constructions is entitled to recover the amounts claimed for those variation items, reduced by $1,100 for item 4 as discussed earlier. Therefore the amount recoverable by Castle Constructions for these items is $12,452.33.
  9. [113]
    Further, in respect of variation item 15, I am similarly satisfied that the homeowner should reasonably pay the costs of removing rubbish from the site of $572. Mr Pourasad had the opportunity to remove the rubbish and avoid the costs but failed to do so. I find that the cost of removal represents an unreasonable hardship on the builder in circumstances when he had no margin in the job, and that it is not unfair to the building owner for the builder to recover the amount.
  10. [114]
    Variations totalling $13,024.33 are therefore approved.

Castle Constructions claim for interest under the contract

  1. [115]
    Castle Constructions also seeks interest under the contract. Clause 32 provides that if the owner does not pay any amount owing in full by the due date that the owner must pay default interest to the builder. The interpretation clause (clause 37) provides that default interest is the annual rate equal to the Commonwealth Bank overdraft index rate quarterly charging cycle plus 5%. Castle Constructions advises that the overdraft index rate is currently 8.48%. The addition of 5% makes the rate applicable under the contract 13.48%.
  2. [116]
    I have concluded that interest is not payable under the contract. In respect of the final stage claim of $20,530, I have found that there was substantial compliance and on that basis that Castle Constructions is entitled to be paid the final stage claim. However, practical completion was not effected under the contract. Under clause 24.2 on reaching practical completion, the builder must give the owner a notice of practical completion and the final claim as well as the minor defects document under clause 24.4. A notice of practical completion was not issued at any time by Castle Constructions. Accordingly, I am not satisfied that the time for payment of the final claim arose under the contract. It arises as a result of my finding of substantial compliance and orders in this proceeding.
  3. [117]
    I also disallow the claim for interest on the variations approved. Because Castle Constructions did not prepare the appropriate variation documents, it is only entitled to the amounts allowed by virtue of the Tribunal’s approval of them at the date of these orders. Therefore, no interest has accrued under the contract on the amounts claimed for variations.
  4. [118]
    Accordingly, I dismiss the claim for interest under the contract.

Castle Constructions Claim for costs under the contract

  1. [119]
    Clause 33 provides for the owner to pay the builder any debt collection costs including legal fees on a solicitor and own client basis associated with recovery or attempted recovery of an amount under the contract.
  2. [120]
    Because neither of the amounts allowed were payable under the contract, as distinct from as a result of my findings, approvals and orders, debt collection costs similarly are not payable under the contract.
  3. [121]
    The claim for these costs is dismissed.

Mr Pourasad’s counter-claim for incomplete and defective works

  1. [122]
    Each of the items claimed by Mr Fry to be in need of rectification and/or completion is considered in the table at Annexure A to these reasons, which largely adopts the format used in Exhibit 21, except that I have identified the evidence as that of Mr Fry and Mr Moore, rather than the corporate structures (which are abbreviated to CABI and BSA in Exhibit 21) through which they operate
  2. [123]
    The column entitled ‘Item’ sets out the alleged defect item as specified by Mr Fry in his report at Exhibit 20. The column entitled Mr Fry’s evidence sets out a summary of Mr Fry’s evidence, written (from Exhibit 21) and oral, about the item. The ‘Costs’ column is self-explanatory, setting out Mr Fry’s estimate, and where Mr Moore disagrees with it, his estimate. It was acknowledged that the estimates for each item were separately costed: if multiple items were allowed, there would be savings because tradespersons could undertake multiple tasks in attending to the items. The column entitled Mr Moore’s evidence sets out a summary of the written (again from Exhibit 21) and oral evidence of Mr Moore. My conclusions and reasons for them in respect of each item are set out in the far right-hand column.
  3. [124]
    Abbreviations are used for the National Construction Code (NCC), Building Code of Australia (BCA) and Australian Standard (AS).
  4. [125]
    As discussed earlier, Mr Fry and Mr Moore gave their evidence concurrently. As it transpired, this occurred over three days of hearing, 22 August 2014, 25 September 2014 and 2 October 2014. The need for additional hearing days provided the unexpected (and from my perspective undesirable) opportunity for additional evidence to be presented on subsequent hearing days by Mr Fry about items which had already been covered on earlier hearing days. For example, my requests for references to the NCC or AS rather than Exhibit 22, resulted in tendering of extracts from those documents on later days, as well as emails from various suppliers contacted in the interim by either Mr Pourasad directly or Mr Fry relating to the items, about which he apparently thought his earlier evidence may have been inadequate. Invariably, more explanation, sometimes recanting and substituting for or adding to the previous evidence also occurred in this process. The expectation is, of course, that an expert will give evidence succinctly and adequately when given (one) opportunity to do so, there not usually being any further occasion on which it may be added to or recanted. This also led to my overall impressions about Mr Fry’s evidence as discussed earlier.
  5. [126]
    Mr Fry’s evidence is that the house specifications include high quality finishes, and that the only difference between a cheaper house and a high-end house is the cost of the components. He does not consider it a budget home. Mr Moore considers it is a budget home or project house. He said budget homes are in the order of $1,000 to $1,500 per square metre. This house cost about $1,000 per square metre. As they both agree (and I accept), whatever the cost, the required construction standards must of course be met.
  6. [127]
    In respect of the items which I have found in Annexure A are defective or incomplete, I am satisfied that Castle Constructions obligation to perform the work to the appropriate standard accrued or complete it (as the case may be) before termination of the contract and that the work was defective or incomplete as specified.  The total of the individual amounts allowed is $28,950. However, multiple items have been allowed. I accept Mr Moore’s evidence that there will be savings in having rectification works performed because each item will not be separately instructed. I accept, therefore, that the amount allowed contains a loading. I consider it must be reduced to remove the loading, by the reasonable amount of 10% of the total: that is, $2,895. I therefore find that the total damages payable by Castle Constructions is $26,055.

Form 21 and associated certificates

  1. [128]
    The final certificate and all associated certificates should be provided to Mr Pourasad in exchange for the monies due to Castle Construction under these orders.

Mr Pourasad’s claim for interest under the QBCC Act

  1. [129]
    Mr Pourasad seeks interest under the QBCC Act, which the Tribunal may, in its discretion, order on damages allowed. I do not have evidence to suggest that Mr Pourasad has incurred any cost of rectifying any of the defects allowed by me. In the circumstances, I am not satisfied that it is appropriate to award interest. I refuse the claim for interest.

Orders

  1. [130]
    I have allowed Castle Constructions claim in the total sum of $33,554.33 for the final claim under the contract and the variations approved. I have allowed Mr Pourasad’s claim in the amount of $26,055.00.
  2. [131]
    The amount allowed for damages to Mr Pourasad offsets the amount owing to Castle Constructions. Accordingly, Mr Pourasad must pay Castle Constructions the difference between the two amounts of $7,499.33. The certificates must be provided to Mr Pourasad in exchange for the payment.
  3. [132]
    Mr Pourasad claims legal costs under the QBCC Act. However, both of the parties have had some success on their respective claims. If either or both of the parties wishes to pursue a claim for costs, they must provide some further submissions about why they say they should succeed on that claim in the circumstances and setting out the amount claimed. I will then further decide the issue of costs on the basis of the submissions without an oral hearing.
  4. [133]
    I make orders accordingly.

 

Item Identified by Mr Fry

Mr Fry’s Evidence

Expected Cost as estimated by Mr Fry (and where disputed, by Mr Moore)

Mr Moore’s Evidence

Tribunal’s conclusions and reasons

1

External Roof:

Roof Covering Condition in Detail:

A small number of broken and poorly placed roof tiles were noted and should be replaced

Replace

Oral evidence:

Mr Fry clarified that only one of four columns is affected: 3 are cut and fitted snuggly, but he says on the affected 4th column (two) tiles are broken. He says vermin can enter the roof cavity and that the current arrangement allows water to leak into the house, belatedly suggesting that on 18 July 2014 he saw evidence that water had entered.

He said there was deflection of tiles and referred to non-compliance with AS 2049, referring to sections 6.07 and 6.09 of Exhibit 22.

On a later hearing day, he tendered an email trail between himself and a representative of the supplier and installer of the roof tiles, Bristile Roofing (Exhibit 31). Apparently, Mr Fry had given photographs to them which a Bristile representative suggested indicated flashings had been installed subsequently and ‘several roof tiles have been removed, moved, broken and re-installed incorrectly’ (which it is said will void any installation warranty) and that a reinspection to be done had not occurred because Castle Constructions said they did not have control of the site.

$500

Mr Moore considers the estimated cost reasonable if the item is considered a defect

No evidence as inspected

Oral evidence:

Mr Moore opines that the tiles are not broken but cut to fit the roof pitch. He did not climb onto the roof but viewed Mr Fry’s photographs of the area. He says that the lead flashing provides the required water-proofing and sisilation stops vermin entering.

He commented that section 6.09 of Exhibit 22 referred to by Mr Fry relates to undulation and is not relevant to cut tiles.

Mr Fry inspected and Mr Moore viewed photographs only. The belated mention by Mr Fry of ‘evidence’ that water had entered was unable to be tested by Mr Moore. In explaining the alleged defect, in his oral and written evidence, he had indicated only that the current arrangement would allow water to enter until Mr Piran directly questioned him about any leak, when he then suggested there was very recent evidence which had been seen by him only after the experts conclave (and which was then unable to be disputed or verified by Mr Moore). Had there been a leak, or evidence of it, that is an important point, which I am satisfied would have been disclosed earlier in his oral evidence about the issue.

That said, the untested evidence of the Bristile representative suggests he considered the tiles on one column to be broken from his observations of the photographs.

I prefer Mr Moore’s evidence (which accords with my own reading of it) about the inapplicability of section 6.09 of Exhibit 22 to these circumstances. However, 6.07 concerns cutting of roof tiles and states that tiles are defective if not cut neatly to present a straight line at ridges, hips verges and valleys. This seems applicable to the circumstances. Mr Moore did not suggest otherwise and did not suggest that the requirements of the AS are not properly reflected in the summary provided by Exhibit 22.

Although I have reservations about Mr Fry’s evidence as explained earlier, Mr Moore did not inspect the alleged issue personally. On the balance of probabilities, having regard to the requirements as set out in 6.07, I find that there are two broken tiles on one column and that this is a defect.

I allow damages in the amount of the estimate agreed at $500.

1.1

Restrictions - Roof Interior:

Cavity Present/Not Accessible:

A roof void is present but is not accessible as, the entry point is currently inaccessible due to the position of the trap. The trap needs be relocated to a position which permits access to the roof space.

Reposition or provide additional trap to an area with greater access to the roof area

Oral evidence:

Contravenes AS1418 Timber Framing Code and AS4349.1/2007 Building and Pest Inspection Code.

Subsequently, when the hearing reconvened on 25 September, he told the Tribunal that in fact it was AS4349.1 which had not been complied with.

He subsequently tendered a copy of AS4349.1/2007 on 2 October, asserting that Table 3.2 is the relevant part.

$500

Cost considered reasonable by Mr Moore

Garage ceiling access hatch has tight but adequate access

Oral evidence:

There is no requirement for an access hatch, but there is restricted access to the roof and access to the garage. He said that there is nothing unusual about this situation.

Mr Moore said that in his opinion AS4349.1/2007 did not specify access required: it is an AS for pre-purchase inspections only, not a building standard.

Eventually, on the fourth day of hearing (2 October 2014), Mr Fry tendered a copy of the AS 4349.1/2007. It is clearly an AS about Inspection of Buildings, that is, pre-purchase inspections of residential buildings. It specifies in 3.2.2 that an inspector conducting an inspection shall determine and inspect areas which are accessible and reasonably safe to inspect. In table 3.2 it specifies dimensions which are considered to provide reasonable access (for the purposes of an inspector determining whether he must to enter the space during the inspection). It is not a standard specifying requirements for construction of a roof trap and is irrelevant to whether or not the current trap complies with any standard.

I accept the evidence of Mr Moore.

I am not satisfied that the current access trap contravenes any AS.

Accordingly, I do not accept the claimed defect.

1.2

Bedroom Three

Internal Walls Condition:

Light switch between entry door architrave and robe architrave should be centrally located this is poor workmanship to place it in the manner it has been rectification (sic).

Centre switch between the architraves

Oral evidence:

Placement not contrary to any standard, but not best practice for light switch not to be centred.

$400

Mr Moore considers the cost reasonable if defect accepted.

Adequate location

Note : double stud

Oral evidence:

Placement is not contrary to any standard: in a budget home, placed at the discretion of the electrician

It is apparent from the evidence of both Mr Moore and Mr Fry that there is no defect.

Accordingly, I do not accept the claimed defect.

2

Windows condition

1) Adjustment required to some windows to ensure smooth operation

2) Insect screens are a poor fit, all windows should be installed with operational screens

Windows are binding in frames, all windows may require replacement

Oral evidence:

8 windows only are binding, not all of them: 2 in the master bedroom; 2 in the family area; 3 in the lounge room; and 1 in bedroom 3. The windows do not comply with the Australian Windows Association (AWA) Installation Standards. Mr Fry later accepted that AWA is a guide only and does not supersede manufacturers’ instructions.

Although unaware whether the manufacturer had provided specifications, Mr Fry asserted that he believed they applied. He opines that no window has a 10 mm gap between the brick sill and the underside of the aluminium frame because the render applied has removed any tolerance for movement.

His report refers to windows in the laundry, entry and dining area. He reluctantly accepted the ‘window’ in the entry might be a sidelight and is not screened. He asserted it had 20mm clearance underneath (which he said should be 5mm); 6-8mm up the side (which he said should be 3mm). He said that although none of this was in his report, he recalled it.

He saw some insects between the glass and screen, suggesting the screens were poorly fitted.

On 25 September 2014, he recanted his evidence, conceding that AS 4654 did not support his previous evidence. However, he asserted that an (unspecified) document on Boral Windows website supported, as Exhibit 23 (page 12) indicates, that a gap is required, although he now says it is a gap of 12 mm which is required.

He says that if there was a gap left when the windows were installed, then the render has been applied over it and it has therefore been compromised so that any movement in the frame distorts the action of the window.

On 2 October, he sought again to add to his evidence tendering Exhibits 41, 42 and 43, claiming now that AS4654 was not applicable, but AS2047-99 was relevant. In any event, Exhibit 41 is only a copy of Amendment No 2 to AS2047-1999. In Exhibit 42, he referred me to details at page 25 relating to casement windows, saying the sill detail was nevertheless typical. He claimed Exhibit 43 is a copy of a Dowell sill detail, with his handwritten notes endorsed to say where ‘things should be’.

$8,000

Oral evidence:

Mr Fry says this estimate is to remove the windows, adjust them and put them back in

Mr Moore had thought the estimate was to replace all windows. To remove, adjust and replace 8 windows, he estimated a cost of $5,000 to $5,500.

No evidence as inspected

Oral evidence:

He did not test all windows, but those tested were not binding. The AWA Installation Standards are only a guide and not intended to supersede manufacturers’ instructions. The AS applies.

He conceded that as per the AWA guide, (whether it applied or not), 10 mm clearance under the extrusion is required. He considers they are fit for the purpose but did not look at all of them to ascertain if there is a 10mm gap in each case.

There is a side light in the entry which is part of the door which opens and closes.

In response to the evidence of Mr Fry on 25 September, 2014, he produced several photographs (as did Mr Fry at Exhibit 27) which he said demonstrate that there is black rubber flashing under various windows and that there is a 10 mm gap: Exhibits 26 and 28.

He opined that if render has been applied over any of the gaps (which he does not concede), that this was outside of the defect as specified.

Mr Moore expressed hesitation about whether Exhibit 41A was current, having been published on 29 June 2001. He relied upon his previous evidence in relation to the issues raised by Mr Fry from Exhibit 42. Mr Moore considered essentially that the handwritten notes of Mr Fry on Exhibit 43 misrepresented what had been done in the construction and did not add to what Mr Fry had already said.

The alleged defect item as described does not reveal reference to the issue raised by Mr Fry concerning the render.

Mr Moore did not test all windows. It is of concern that Mr Fry refers to windows in rooms where there are none, both in terms of his credibility generally, and the estimated costs he has advanced.

The issue regarding the screens is trivial, involving only some insects observed between the glass and the screen. It appears the estimated costs do not actually anticipate any work to rectify this.

The alleged defect in 2. 1 relates to adjustment being required to some windows, essentially because they are binding in their frames.

Exhibit 29 is a Form 15 stating that the windows were manufactured by Boral to meet the required standards. It appears that Boral manufactures windows under the trade name of Dowell: Exhibit 42.

It is common ground that a gap is required, although Mr Fry has amended his opinion between hearing days about whether 10 or 12 mm is required. I accept as Mr Moore says that that a gap of 10 mm is required.

I have looked at the photographs in Exhibits 26 to 28. Mr Fry complained that some photographs tendered by Mr Moore were during construction, that is, before the render was applied. However, I have a variety of pre and post render photographs. I can see the black rubber flashing on the post render photographs suggesting that the gap was not rendered over and that movement is possible.

I was not referred to any specific part of Exhibit 41A and as far as I can see, it contains no information relevant to this issue, even if it is accepted as current. Exhibit 42, as far as I was referred to it, relates to casement, rather than the double-hung windows in the house in question. Mr Moore disputes the accuracy of Mr Fry’s handwritten comments in Exhibit 43.

On 2 October 2014, Exhibit 53 was tendered. It is an email dated 30 September 2014 from a Dowell representative to Mr Pourasad which responds to certain complaints made by him about the operation of windows and fit of some screens. It states that the screens fitment is standard. In relation to the windows, it notes that a gap is required and indicates that gaps are present, some greater than design due to the screens sitting higher than usual because of the render. It notes that in double-hung windows variations to sliding are inevitable. Service of some windows is suggested. One window in Bedroom 1 is noted to have a slight bow and service is suggested.

Although the email writer was not made available for cross-examination, the email suggests that the screens are fitted as expected, in keeping with the screen issue being minor and not being a defect. I am not satisfied on the available evidence that the screens are defective.

In respect of the windows, the email also appears to confirm Mr Moore’s evidence and my own observation of the photographs. I am satisfied that a gap is present as required. Mr Moore did not ascertain an issue with any of the windows tested by him. In keeping with this, the windows complained about by Mr Pourasad to Dowell, do not appear from the email from their representative to have suggested the need for more than a service to the windows. I am satisfied that to the extent that any of the windows are sticking that this is a maintenance issue, which some 18 months after construction was concluded, is Mr Pourasad’s responsibility.

I am not satisfied on the basis of the evidence before me that there is a defect for which the builder is responsible. I dismiss this aspect of the claim.

3

Doors Condition:

The gap around the door is excessive and uneven and will require refitting to rectify.

Remove and replace all doors and door frames and ancillaries.

Oral evidence:

Mr Fry suggests that a gap of 5mm under a door and 3mm at the sides is required with a deviation of no more than 1mm. He said that internal door clearances could not be more than 5mm under AS4654, 8.04 internal door clearances. He suggest that the gap under the bathroom door is 10mm. He tendered 6 photographs at Exhibit 32, which he claims demonstrate inconsistencies in the gaps. Photos 1a, 1b and 1c and 3 are all of the bathroom door, photo 2 is a bedroom door and photo 4 is a cupboard in the hall. He states that lift off hinges are not required on the bathroom door photographed.

$3,000.00 to remove and refit all doors with new frames.

Mr Moore estimates $450 per door, but considers $3,000 for all doors reasonable.

Fit for purpose and functional, no defects other than cavity sliding door was jammed in the cavity.

Oral evidence: Mr Moore suggested that the usual gap tolerances are as per Exhibit 22, paragraph 8.04. It is defective if less than 2 mm or more than 5mm. He said that external door clearances are different, but was unable to refer to the relevant AS. He says when he inspected he closed some of the doors although not all and they latched. He considered they were fit for purpose. He conceded that photographs 2 and 4 in Exhibit 32 show a larger gap down one side of the door. He suggested in wet areas some doors must have lift off hinges requiring a larger gap.

I accept that there are tolerances within which the internal door gaps should fall as set out in AS4654 as extracted at Exhibit 22 in paragraph 8.04.

It is difficult to ascertain the size of the gaps from the photographs in Exhibit 32, despite a measuring tape in photos 1a, 1b and 1c. However, I am reasonably satisfied that the gaps are inconsistent in photos 2 and 4.

I accept that a hinged door is not required in the bathroom as Mr Fry says: Mr Moore did not appear to have considered whether it was required or not.

On the balance of probabilities, I accept that there are inconsistent gaps in the gaps around the 3 doors in the photographs which exceed the tolerances. Further, Mr Moore acknowledges an issue with the cavity sliding door. The latter is dealt with again in item 5.0 in more detail and so is not covered here.

At a cost of $450 per door, I would allow $1,350 to rectify the 3 doors (other than the cavity door) concerned.

3.1

Woodwork

1) Architraves are loose and poorly fitted these will require removal and refitting

2) Incorrect paint to timberwork. Paint applied is incorrect gloss paint is required to comply with the written specification. All timber work to be repainted to comply with the builders written specification.

3) Gaps in skirting.

4) Finish between connection point of doorjamb and wall is poor and will require rectification.

Repair repaint and gap fill as required.

Oral evidence:

3.1 2) Mr Fry accepts this item is a contractual issue and the work is not defective. Mr Fry acknowledged item may be misleading as it doesn’t refer to a particular identified area.

3.1.4) the door jamb would usually have a moulding and it does not.

$650.00 for all of 3.1.

Oral evidence: Although broken down it consists of $300 for 3.1 1); $350 for 3.1 2), and $50 for 3.1 3); and $100 for 3.1 4).

Mr Moore disagrees $350 for the paint. He says it would be $1,500 as the floor coverings and walls would need to be protected.

Several gaps to architrave mitre joints

Owner request for variation as discussed with builder

Minor defects

No evidence as inspected

Oral evidence:

3.1. 4) A moulding is industry practice but not necessary, especially in a budget home. Not a defect. Not contravene any AS.

3.1 1) It is common ground that the architraves are loose and require refitting. The estimated cost was also agreed at $300. I would allow the defect and rectification at a cost of $300.

3.1 2) The painting is not defective, although the contract specified gloss paint. There is a controversy about whether the homeowner requested a variation. However, I do not need to resolve this controversy. I am satisfied that it would be unreasonable to require the builder to pay for the cost of repainting in gloss paint when the painting is not defective.

3.1 3) I am satisfied on the evidence that any gaps in the skirting is attributable to the actions of Mr Pourasad and/or his agents during the floor laying. It is not defective work for which Castle Constructions is responsible.

3.1 4) Mr Fry clarified that he does not allege a defect: he refers to the moulding only. I accept Mr Moore’s evidence that a moulding is not required and that there is no defect.

3.2

Entry/Foyer:

Ceiling Condition:

No cornice has been provided, this will require rectification.

Provide cornice and paint.

Oral evidence:

At the hearing, Mr Fry acknowledged that this is a contractual issue although he insisted nevertheless that it was a defect. That said, he acknowledged that the square set finish ceiling to wall provided is not contrary to any AS and has no damage, he simply contended that the contract provided for cornice.

$800.00

Owner request for variation as discussed with builder. Required to be square-set.

Oral evidence:

Mr Moore stated that there is no defect.

There is controversy about whether the square set finish was substituted by agreement. There is no variation concerning it. However, ultimately, I do not consider that I need to resolve this controversy.

It is in essence common ground that the square set finish is not defective. I am satisfied that it would be unreasonable to require the builder to pay for the costs of a cornice finish in the circumstances that there is no defect with the current work.

The claim is dismissed.

3.3

Internal Walls Condition:

Blade wall is missing and will need placement.

Provide additional blade.

Oral evidence: Mr Fry acknowledged that this is a contractual issue only.

$1,800

Unable to assess

No defect is alleged. In view of my earlier finding that Mr Pourasad instructed one blade wall which was factored into the price and appears in the approved plans, this claim must fail.

It is dismissed.

3.4

Woodwork

Paint is incorrect as it calls for full gloss in the specification.

Paint as per schedule

Oral evidence: Mr Fry acknowledged that this is a contractual issue only.

$500

Owner request for variation as discussed with builder

This is the same issue as specified at item 3.1. 2). Once again, there is no defect and I am satisfied that it would be unreasonable to require Castle Constructions to pay for the costs of repainting.

The claim is dismissed.

3.5

Lounge Room:

Ceiling Condition:

90mm cornices are missing and will require placement this will be more difficult hs(sic) achieve a long term adhesion to walls and ceilings due to the fact that surfaces have already been painted.

Provide cornice and paint.

Oral evidence: Mr Fry acknowledged that this is a contractual issue only.

$1,200.00

Owner request for variation as discussed with builder. Required to be square-set

This is the same issue as specified in item 3.2.

Once again, there is no defect and I am satisfied that it would be unreasonable to require Castle Constructions to pay for the costs of repainting.

The claim is dismissed.

3.6

Windows Condition:

1) Adjustment is required to some windows to ensure smooth operation.

2) Insect screens are a poor fit, all windows and should be installed with operational screens.

Price allowed for in item 2.

 

No evidence as inspected.

This is the same issue as identified in item 2.

Once again, the claim has been dismissed.

3.7

Woodwork

Some skirting boards have been placed in short pieces where a full length of skirting is available and should have been used the joints are poorly fitted replacement required as this is deemed poor workmanship and should be avoided where ever possible.

Remove and replace with correct length material.

Oral evidence: One piece of skirting board is only 300mm in length, when typically fitted in full room length. The 300mm piece is also mitred the wrong way. The piece concerned is on the right hand wall as the room is entered.

$550.00

Minor defects

Oral evidence: Mr Moore understands that the homeowner removed and replaced the skirting to lay flooring. He did not recall observing the piece complained about, but accepted that any piece 300 mm in length would not be to industry standard.

Mr Pourasad acknowledged that he and his agents laid flooring and that during that process, skirting boards were removed and cut or broken. I do not have evidence from either Castle Constructions or Mr Pourasad about whether the 300mm piece of skirting was installed by Castle Constructions, or whether it results from the actions of Mr Pourasad and his agents.

On the available evidence, I am not satisfied that Castle Constructions is responsible for installing the 300mm piece. Further, as the skirting has been removed and refitted by Mr Pourasad, I am satisfied that Castle Constructions is not responsible for the current state of the poorly fitted joints.

I dismiss the claim.

3.8

BATHROOMS

Bathroom:

Area:

Area within the bathroom is minimal and should be confirmed that it meets compliance, any person with any kind of disability would not be able to use this area. The restrictive nature of the setout of appliances and facilities makes this area potentially unsafe for general use by all that may need to use the area we do not believe the meets with the general terms of a habitable area.

Cost unknown

Oral evidence: Mr Fry contended that the bathroom is small and he believes it does not meet the National Construction Code, in particular concerning safe egress. He was unable to nominate any particular provision which he considered had been contravened.

After viewing the BA approved plans at Exhibit 3, he acknowledged that he could not sustain his comments in respect of this issue.

 

 

Owner request for variation as discussed with builder. Required to alter the bathroom to facilitate a separate wc cubicle

Oral evidence: Mr Moore pointed to the BA approved plans.

It was ultimately common ground that there is no defect.

The claim is dismissed.

3.9

Doors Condition:

Doors have been fitted poorly in jambs the gap is excessive and uneven the door and jambs should be rectified if this is not possible then removed and replaced with a product that is of an acceptable quality.

Price allowed for in item 3.

 

Fit for purpose and functional, no defects other than cavity sliding door was jammed in the cavity

This issue has been dealt with in item 3.

3.10

Glazing:

Mirrors and shower screens should be confirmed that they comply with the relevant Australian Standards.

Cost unknown to be determined if mirrors fail audit.

Oral evidence: Mr Fry contended that in the absence of a Form 15 or Form 16 that he did not accept that the glazing complied with the AS. He was unable to point to any particular aspect of an AS said to have been contravened or any identifiable defect.

After viewing the documents offered by Mr Moore, Mr Fry withdrew the issue and acknowledged compliance with the AS.

 

Fit for purpose and functional, no defects

Oral evidence: Mr Moore said he had seen documents and showed Mr Fry several documents supplied to him by Castle Constructions including the Form 15 for the shower screen.

 

It was ultimately common ground that there is no issue.

The claim is dismissed.

 

3.11

Woodwork

Paint applied is incorrect gloss paint is required to comply with the written specification. All timber work to be repainted to comply with the builders written specification.

Repaint window only

$150

Owner request for variation as discussed with builder

This claim relates to the bathroom woodwork only. This contractual issue has been dealt with in item 3.1 2).

The claim was dismissed.

3.12

Tiles:

The condition of the tiles is generally poor. Tiles have marks which cannot be removed removal and replacement of tiles is required. These tiles may be second quality.

Floor tiles in ensuite fall away from the floor waste this is a non-compliance with the relevant Australian Standard.

Remove and replace tiles, waterproofing and wall sheet and ancillaries.

Oral evidence: Mr Fry described a blemish over the surface of the tiles, which he said was like a ‘scuff mark.’ He said they should be ‘full-gloss shiny,’ and suggested that it was as though something had been applied which had taken the gloss off. He was unable to identify any AS which had been contravened by the finish on the tiles. He did not accept Mr Piran’s suggestion that the tile was intended to mimic a marble tile.

In relation to the fall, Mr Fry suggests that the NCC in SA3.1 requires a fall to the bathroom floor waste of between 1:80 and 1:100. Confusingly, since this item deals generally with issues in the main bathroom, the issue concerning the fall refers to the ensuite bathroom. Mr Fry says the tiles fall away from the waste by .05mm in the ensuite bathroom. Photographs taken by Mr Fry are at Exhibit 34. He contends that both bathrooms have the same issue.

In response to Mr Moore’s comments, he said the same issue existed in the ensuite, and that large tiles are often cut to achieve the required fall. He said he was not aware of any industry norm as described.

On a subsequent day of hearing (2 October 2014), Mr Fry tendered Appendix D to AS3958.1-2007 which is Exhibit 44.

$8,500.00

 

Mr Moore estimates that $8,500 would cover the costs in both bathrooms, if the Tribunal considers that there is a defect to be rectified. See also item 4.2.

Tiles as nominated and agreed to by owner. No defects other than a minor section of splashback tile grout dislodged

Oral evidence: Mr Moore acknowledged marks on the tiles, but suggested they could be cleaned. He did not believe it had been tested, suggesting that tilers use industrial cleaners. He opined that the tile had a look alike marble type finish.

Mr Moore clarified that the waste concerned is not the waste in the shower. It is in the bathroom floor. He says that he tested the waste and it drained. He said that falls with large tiles can be difficult and that the industry allows a time frame (which is not in an AS or the NCC) for the inflow to waste to drain: 3 minutes for floor waste.

This claim relates to the bathroom tiles only.

Mr Fry does not allege that the condition of the tiles breaches an AS. Part (half) of one of the tiles is Exhibit 33. The tile does not have a standard full gloss finish. It has, what I would describe, as very obvious uneven etching marks which give the appearance of an imitation marble finish. It is quite apparent that they were not intended to be full gloss tiles. The ‘scuff marks’ identified on this piece of tile by Mr Fry are not, however, the clearly defined etching type marks which I am describing. Those marks are much smaller, and to my mind in the nature of very small indentations which appear in the gloss randomly on the tile. It appears to me that the marks are part of the overall marble-look intended effect. In any event, I am not satisfied on the evidence that there is any defect in the condition of the tiles.

Exhibit 44 commences with an explanation that the primary consideration for falls in floor is to ensure water does not remain on finished floor, by ensuring it exits at the floor waste or doorway (if it is the designated exit point). It should not pond. The recommended fall ratio for wet areas other than showers is specified at between 1:80 and 1:100. It says where falls steeper than 1:100 are not achievable, the effectiveness of the drainage should be confirmed to ensure it meets the primary consideration. On my reading of it, whether the recommended ratio is achieved, if it works to ensure water does not remain on the floor, rather than ponding, it is adequate to meet the primary objective. It is not a strictly prescribed fall.

Further Exhibit 44 refers back to the guidelines in clause 5.4.6(a) (presumably in AS3958.1-2007), regarding falls and drainage. I was not provided with these, and therefore do not know whether they provide any additional relevant context or information.

Mr Moore tested the waste, and he says it drained within the industry standard of 3 minutes. I accept his evidence. Based on the evidence before me, I do not accept that the fall is defective.

I dismiss the claim.

3.13

Basin & Taps and Shower Screen:

Basin and taps and shower screen should be confirmed as a quality for use in Australia as the brand is unknown and taps have no brand name affixed.

Identify and confirm if these items comply if not then replace with materials that meet with Australian Standards.

Oral evidence: After viewing the relevant Form 15 provided to him by Mr Moore, Mr Fry conceded that there was no defect.

$1,100.00

Fit for purpose and functional, no defects

Mr Fry ultimately concedes that there is no defect. The claim is dismissed.

3.14

Vanity Unit:

The build quality is poor.

Replace

Oral evidence: Mr Fry contends it is a ‘high end’ quality vanity and that it must be replaced rather than repaired.

In response to Mr Piran’s questioning about whether silicone sealing would solve the problem, he responded with words to the effect of ‘not 100%. It may still allow damage (to occur).’

$1500.00 is the estimated cost to replace the vanity.

Mr Moore estimates $500 to repair the vanity.

Fit for purpose and functional, minor defects

Oral evidence: Mr Moore concedes that the vanity has a penetration hole in the base, and is therefore not sealed, which could trap moisture and cause premature decay. He says it could be repaired by placing a stainless steel colour cover inside the vanity. He considers it a minor defect.

Mr Fry suggests replacing a stone top vanity because of a penetration hole in the base, and replacing it with another new one. I do not accept that this is a reasonable manner in which to rectify, what I accept is, a minor defect.

I am satisfied on the basis of Mr Moore’s evidence that the defect can reasonably be repaired for a cost of $500.

I allow the claim in the amount of $500.

 

4.0

Ensuite Bathroom:

Windows Condition:

1) Adjustment is required to some windows to ensure smooth operation.

2) Insect screens are a poor fit, all windows and (sic) should be installed with operational screens.

Replace cost covered under item 2.

 

No evidence as inspected

This issue has been dealt with in item 2.

4.1

Woodwork

Paint applied is incorrect gloss paint is required to comply with the written specification. All timber work to be repainted to comply with the builders written specification.

Repaint

$150

Owner request for variation as discussed with builder

This issue has been dealt with in item 3.1. 2).

The claim is dismissed.

4.2

Tiles:

The condition of the tiles is generally poor. Tiles have marks which cannot be removed removal and replacement of tiles is required. These tiles may be second quality. Tiles fall away from floor waste, rectification required.

Tiles fall away from floor waste in general area of ensuite.

Remove and replace tiles, waterproofing and wall sheet and ancillaries.

Oral evidence: Exhibit 34 was taken in the ensuite bathroom. The floor waste in contention is the waste in the floor, not the waste in the shower.

Mr Fry stated that NCC 3.1 and 3.2.2 come into play.

$8,500.00 to replace all tiles and waterproof ensuite bathroom.

Mr Moore says as the waste is not in the shower recess that waterproofing is minimal and $8,500 would cover both bathrooms, if the Tribunal finds the work defective.

Tiles as nominated and agreed to by owner. No defects

Oral evidence: Mr Moore had understood the defect complained about to relate to the waste in the shower recess of the ensuite bathroom, not the floor waste. He says that there is no requirement in the NCC or the AS for a floor waste in an ensuite bathroom, as opposed to in the shower. However, he conceded that if there is one, NCC 3.2.2 applies.

This issue has been dealt with in item 3.12.

Exhibit 34 is no more than one apparent reading on one angle and one end of the level is not visible on the photograph on which the level is readable. I did not find it compelling.

I make the observation that I was not provided with a copy of the NCC at any stage, although I was subsequently provided with Exhibit 44, Appendix D to AS 3958/2007 which Mr Fry said contained the ‘same information.’ I have noted the shortcomings in the information in dealing with item 3.12.

I otherwise adopt my reasoning in relation to item 3.12.

The claim is dismissed.

4.3

Basin & Taps and Shower Screen:

Basin and taps should be confirmed as a quality for use in Australia as the brand is unknown and taps have no brand name affixed.

Identify and confirm if these items comply if not then replace with materials that meet with Australian Standards.

$ Part of vanity there is no shower screen.

Fit for purpose and functional, no defects

As per item 3.13, Mr Fry ultimately conceded that there is no defect.

4.7

Vanity Unit:

The vanity unit is poor quality and damaged this will require replacement.

Oral evidence: Mr Fry says that the base is broken and an artificial base is in place. He says it will fail, because it is in a wet area. Once again, he claims it is a high quality installation. He contends that it must be replaced.

$1,500.00

 

Mr Moore contends that the necessary repairs can be done for about $200.

Fit for purpose and functional, no defects

Oral evidence: Mr Moore says that that the broken base has been repaired with a Formica base. He says it is functional as it is, but not waterproof. He suggests that it needs only to be sealed around the edge.

I accept that the base of the vanity has been broken, and that a Formica base has been used to replace it, which is not waterproof.

I do not accept that it is reasonable for the stone top vanity to be replaced because the base has been broken. I am satisfied, as Mr Moore suggests that it can be repaired by sealing the base at a cost of $200.

I allow damages to repair the defect at $200.

5.0

KITCHEN

Kitchen:

Doors Condition:

The sliding doors (sic) binds to the point where operation does not exist and is in need adjustment and/or repair/ replacement.

Entire replacement maybe necessary

 

 

$1,000.00

Mr Moore agrees that the door requires repair or replacement and that $1,000 is a reasonable estimate of cost.

Door binds in cavity

The experts agree, and the parties accept, that the door is defective and must be repaired or replaced.

I allow damages in the amount of $1,000.

5.1

Woodwork

Paint is incorrect and will require repainting with correct gloss paint.

Repaint to specification.

$500.00

Owner request for variation as discussed with builder

This contractual issue has been dealt with in item 3.1. 2). I adopt my reasoning as set out in relation to it. The claim is dismissed.

5.2

Kitchen Fixtures:

The condition of the fixtures is generally poor.

1) Gable ends are missing.

2) Gable ends fitted are loose and have not been fitted correctly.

3) Stone Benchtop and gable's (sic) appear to have been made from several pieces of material instead of one piece this is an indication that these sections have been put together from waste material replacement is necessary to ensure quality.

Stone Gable End is incomplete and is of poor finish and build quality removal and replacement is required.

4) Sink mastic has been fitted poorly sink wiIl require removal and refitting.

5) Drainage to sink is leaking.

6) Glass Splash backs are poorly fitted and do not fit the area they have been placed in, they do not appear to made from safety glass as required. (Glazing Audit required.)

7) Glass Splash back behind cook top appears to be to close to the burners and has cracked replacement is required. (Glazing Audit Required.)

8) Floor tiles have marks on the surface these tiles appear to be factory seconds. (Replacement required.)

9) There are gaps between the kickboards and the underside of the carcase (sic), some sections appear to be broken, these kickers have been fitted poorly and will require replacement.

10) Range hood does not fit the space provided rectification required.

11) Gable end adjacent to laundry door extends beyond door opening and will require rectification.

12) Kitchen is of poor fit & build quality it is our opinion removal and replacement of all components is required to rectify problems.

Oral evidence: Mr Fry suggested that the stone gable end may have been cut and epoxyed, because he thinks he can see a buff line. He says there are a number of pieces of stone used in the bench-top. Exhibit 35 and 36 refers.

$40,000.00

Mr Moore considers that any item considered defective can be separately repaired. He has broken down the estimated costs as follows (Exh 37):

1) $900

2) Nil

3) $12,000

4) $300

5) $500

6) $2,000

7) $3,000

8) $8,000

9) $12,000

10) Reuse

11) $1,000

1, 2 and 3)

Builder offered to go to the manufacturer to replace a defect

Owner directed to install

No evidence of loose panels

Oral evidence: The gable end has a defect and was to be replaced. He agrees with 5.2.1) and the final sentence of 5.2.3). He saw no evidence of loose gable ends. Photo BM 13 to Exhibit 19 shows a fault line in the gable end (rather than a join in his opinion). He explained it is not possible to join it mechanically.

4) Sink infill sealant is poorly installed

5) No evidence as inspected

6) Fit for purpose

Oral evidence: Relies on the Form 15 Glazing Certificate.

7) Crack to cook top splashback

Oral evidence: Mr Moore acknowledges that there is insufficient setback as per Exhibit 21.

8) No evidence as inspected

9) Minor kickboard laminate dislodged, broken

Mr Moore agrees as per Exhibit 21. He estimates costs for replacing the kickboards at $12,000: see Exhibit 37.

10) Fit for purpose

11) No evidence of an encumbrance

12) Fit for purpose

Mr Fry considers that the entire kitchen should be entirely removed out and replaced at a cost of $40,000.

There is some agreement that there are issues with the stone gable end which has a line across it which is visible on photographs in the Exhibits, and that gable ends are missing. I do not otherwise accept the alleged defect set out in 1) to 3). In my view it is unreasonable to remove and replace the entire kitchen (in view of my findings in relation to 5.2.1-5.2.12 as set out below). However, I accept that the gable ends are missing and/or defective respectively.

I would allow damages for 5.2.1) in the amount of $900 as estimated by Mr Moore. In respect of the defective gable end referred to in the final sentence of 3), I do not have a separate costing for it, as opposed to replacing the all bench-tops. However, I allow the reasonable amount of $2,000 to replace that piece.

4) I would allow the cost to reseal it in the amount of $300.

5) I accept Mr Moore’s evidence and dismiss this claim.

6) The Form 15 including the Glass Splashbacks is at Exhibit 45. I do not accept that the items are defective. I dismiss this claim.

7) I accept Mr Moore’s evidence that the set-back is insufficient. Castle Constructions accepted that it is defective as per Exhibit 1.

I would allow damages to replace it as estimated by Mr Moore at $3,000.

8) This item has been dealt with in item 3.12.

I adopt my reasoning in 3.12 in relation to the tiles and dismiss the claim.

9) As per Exhibit 1, Castle Constructions accepts the kickboards are defective. Mr Moore has estimated $12,000 to remove and replace them. I allow damages in the amount of $12,000.

10) I am not satisfied that the item is defective. I dismiss the claim.

11) I accept Mr Moore’s evidence. I am not satisfied that the item is defective. I dismiss the claim.

12) This item is a double-up encompassing the earlier alleged defects. I dismiss this claim.

6.0

LAUNDRY

Laundry:

Doors Condition:

The condition of the doors is generally poor. See notes regarding same in kitchen section.

Previously costed.

Oral evidence: Mr Fry says that there is a scuff mark on the side of the door where it catches on the cavity.

Both agree that the cost to repair this door is $100.

Fit for purpose

Oral evidence: Mr Moore agrees it is catching on the cavity, but did not observe a scuff mark. He agrees it is a defect.

I am satisfied that the door is defective in that it catches on the cavity. I allow the sum of $100 as damages to rectify it.

6.1

Woodwork

Paint is incorrect and will require repainting with correct gloss paint.

Repaint

$200.00

Owner request for variation as discussed with builder

This is the same contractual issue which has been dealt with in item 3.1. I adopt my reasoning in 3.1. 2). I dismiss this claim.

6.2

Tub & Taps:

1) Some leakage was noted at the drain rectification required. Sealant to tub has been poorly placed entire removal and refit required.

2) Bench Top does not fit the cabinet installed edges have been finished poorly.

3) Glass splashback has not been made to suite(sic) area and overhangs benchtop and has not been made to suit area replacement required.

4) Glass splashback there is no evidence that this has been made with safety glass. (A Glazing audit is required for this area.)

Replace bench top, replace splashback.

Oral evidence:

2) Mr Fry says that there is an overhang of the stone bench top which is unsupported. He also says that the stone top has a sharp edge which has been saw cut and not buffed.

3) Mr Fry says that the splashback does not meet the bench top and has not been purpose-made.

4) Oral evidence: Mr Fry does not accept the Form 15 (exhibit 45) is adequate to establish that the splashback is made of toughened glass (because he says the glass in the kitchen has cracked but would have shattered if toughened glass). He tendered Exhibit 46 which is part of the BCA, namely 3.6 ‘Glazing’. He believes the current version is not significantly different.

$1,200.00

Mr Moore considered the cost reasonable if all defect items are accepted.

1)Laundry tub infill sealant is poorly installed BM-19

No evidence of leaking

2) Fit for purpose BM-19

Oral evidence: Mr Moore points out the small overhang in Exhibit 18 in BM 19 which provides a small useable area. He says the stone tops are manufactured and cannot be saw cut. The edge complained about faces the washing machine.

3) Fit for purpose BM-19

4) Fit for purpose BM-19

Oral evidence: Exhibit 46 is not the current version and does not in any event refer to splashbacks.

1) It is common ground that the sealant is poorly installed, although a dispute about whether there is leakage. I have no separate cost estimate to rectify the sealant. However, I note that the kitchen mastic was poorly fitted and $300 was the estimated cost to reseal. I am satisfied that it is a similar issue and would involve similar work. I allow damages of $300 to rectify this similar defect.

2) I do not accept that a defect is identified. It is not alleged that an AS or the NCC has been breached. The overhang appears to be a part of the design. The finish at the side of the bench top facing the washing machine and is clearly intended to abut the washing machine. A different finish to the visible part of the top is not a defect in my view. I accept Mr Moore’s evidence.

3) I do not accept that a defect has been identified.

4) I have no evidence that the splashback is defective: Mr Fry’s comments are conjecture. Exhibit 46 is irrelevant to splashbacks.

I allow damages of $300 for 6.2.1 but reject all other claims in 6.2.

6.2

Tiles:

The condition of the tiles is generally poor. Tiles have marks which cannot be removed removal and replacement of tiles is required.

Remove and replace

$1,800.00

No evidence as inspected

This item has been dealt with in item 3.12. I adopt my reasoning in 3.12 and I dismiss the claim.

7.0

TOILETS

Toilet:

Doors Condition:

The toilet door swings inwards and is restrictive to the toilet area lift off hinges have not been installed and need to be as a safety measure.

Previously costed

Oral evidence: Mr Fry says that there is a gap above door to allow hinged door to be lifted but that the door he inspected was not hinged. He said he had inspected it at least twice, and he believed since Mr Moore’s inspection.

Separately costed, the estimated cost is $450.

 

Lift off hinges have been installed

Fit for purpose

Oral evidence: Mr Moore says he lifted off the door he inspected. It had lift off hinges.

$450 is reasonable if defect allowed.

Mr Fry has done several inspections, the earliest in mid-2013 and several since including on 18 January 2014 and sometime in July 2014. It is not known when he last tested the door. Mr Moore’s inspection was done recently on 2 June 2014.

I accept that when Mr Moore inspected there was a hinged lift off door. If it has since been removed, that is not the builder’s responsibility.

The claim is dismissed.

7.1

 

Woodwork

Paint is incorrect and will require repainting with correct gloss paint.

 

$ 400.00

Owner request for variation as discussed with builder

This item has been previously dealt with in item 3.1. 2). The reasoning is adopted from 3.1. 2).

The claim is dismissed in respect of this contractual issue.

7.2

Tiles:

1) Floor tiles have marks on the surface these tiles appear to be factory seconds. (Replacement required.)

2) Top edge of tiles has not been finished correctly.

3) Architraves have been fitted poorly and require replacement.

Remove and replace.

2) This issue relates to the skirting tiles behind the toilet (not in ensuite). The cut edge of the tile is exposed at the top of the skirting tile, contrary to industry standards.

$1,200.00

Mr Moore said that each separately costed room includes call out fees which would not be payable if multiple rooms were to be allowed and attended to.

No evidence as inspected

2) The defect identified does not refer to the skirting tile and he did not understand it to be the defect complained about. Mr Moore was unable to recall it, but accepts industry standards require cut edge to be hidden.

1) This item has been previously dealt with in item 3.12. I adopt the same reasoning.

The claim is dismissed.

2) The alleged defect complained about was not accurately identified until during the hearing. Castle Constructions is disadvantaged because Mr Moore therefore did not look at the tile in the particular area now identified by Mr Fry. Exhibit 47 was tendered by Mr Pourasad, but Mr Fry said that these tiles were not defective and do not demonstrate the issue.

Given how unreliable I have found Mr Fry’s evidence to be, I am not satisfied from his explanation that a defect exists. I dismiss the claim.

3) This item has been dealt with in item 3.1 1). I adopt my reasoning in relation to that item.

The item has already been allowed and damages allowed. Any claim for an additional amount here is dismissed.

8.0

EXTERIOR

Weep Holes and Vents:

Weep Holes:

The weep holes (vertical slots to the base of the brick walls) are blocked in some areas. These may have been blocked by gardens or levels of external paths and/or patios. Weep holes are necessary to allow moisture to be removed from and to ventilate the wall cavity. This issue may also compromise any pest management to the structure. Rectification is recommended.

DPC and Termite Barriers are not visible these items are required to be visible and identifiable.

Repair and make good.

If damage to external walls occurs entire external repaint maybe required.

Repair and Make good without damaging DPC and Termite Barrier

Oral evidence: Mr Fry explained that the house has been bagged. He says that typically renderers do not clean out the weep holes and they are blocked by render and bagging material. He admitted that the wording in his initial report was taken from a template. There are no gardens which impede the weep holes. He denies that anything else specified is incorrect. He suggested that you cannot see the issue from photos and that renderers do not clean the weep holes out properly, saying that more than 50% would be blocked. He apparently relied on his observation of some 700 homes per year all of which he says need the weep holes to be cleaned out.

Although he seemed to concede that the house has a DPC and Termiblast, Mr Fry says that unless you can visually inspect the DPC and termite barrier, you can’t say it’s there. He says it is not visible because it has been bagged and rendered over. He says the Termiblast should extend beyond the render. He acknowledges that the builder has ‘struck a line’ (see Exhibit 18, BM62 below the weep holes), but says that it should have a ‘straight-edge along it’ so that the termite barrier and the DPC are visible. He relies on (Section 7) of AS3660.1-2000 (Exhibit 48) in 7.3.3 and 7.3.4 and 7.4.2 concerning deemed to satisfy provisions where there are graded stone particles.

He ultimately said that it should have been constructed in accordance with Exhibit 16, page 5.

$400.00

$6,000.00

$2,000.00

(Fry: $400 for clearing; $6,000 to repaint entire house; $2,000 to chip away render)

Mr Moore accepts the costs as reasonable if defect accepted, but says if the work is done it would destroy the DPC and termite barrier.)

No evidence as inspected

Fit for purpose

Oral evidence: Mr Moore says that there is no evidence of any obstruction to weep holes. He refers to photos attached to Exhibit 18, BM41 and BM 42. He observed that the weep holes were not blocked. He says that if there was a blockage, there would be evidence of damp.

Mr Moore says it is now common practice that the DPC does not need to protrude through the vertical face. He referred to AS2870-1996, but did not provide a copy to the Tribunal. In relation to the termite barrier, he pointed to a Form 16 dated 1 February 2013 (exhibit 49). He said that now there is a slab edge visual barrier and that accordingly, the Termiblast does not need to be revealed outside of the face of the wall. He relies upon Exhibit 48 at 7.4.2 as highlighted by him, where it says that when external walls are rendered masonry, the shielding shall finish flush with outside of render. In Exhibit 18 BM 62, the line under weep holes is the termite treatment. He says that Exhibit 48 in Figure 1 shows how this visual barrier is provided in this house.

He says there are numerous alternatives which comply with the required standards and considers it is compliant.

Mr Fry’s general assertion to the effect that renderers do not clean out the weep holes is based upon his typical experience, rather than what he saw at this particular house. This is consistent with the general tenor of his evidence about this issue. This impression is reinforced by his use of his template comments, some of which he admits, do not apply to this house. I do not accept that his evidence about this issue is reliable.

Acknowledging Mr Fry’s assertions that photos do not allow the issue to be seen, I am not satisfied that there is any blockage, let alone any significant blockage. I accept as Mr Moore says that there is no evidence of damp, which would be anticipated if there was any significant blockage. Having said that, every homeowner is responsible for maintaining their property post construction, and I do not doubt that this is an issue which should be part of a regular maintenance program.

It is uncontroversial, and I accept, that there is a DPC and Termiblast barrier. There was a great deal of evidence about whether it had to be visible and precisely how it had been done, with both experts revising their views about various points until Exhibit 52 was tendered to show the construction. I accept that Exhibit 48 makes it clear that a visual termite barrier is adequate in prescribed circumstances. I am satisfied that there is a visual barrier on the basis of Mr Moore’s evidence. In the end result, as long as the house has a termite barrier and DPC in compliance with the relevant standards, I do not consider it is reasonable to require rectification simply because it may have been done in a manner other than contemplated by the contract.

I dismiss the claim.

8.1

Render to outside of garage wall has not been completed.

Remove and replace fence, place render and paint.

$1,900.00

Adjacent owner did not allow access for builder

It is common ground that this was not completed. Exhibits 13, 62 and 63 refer. It is apparent from the exhibits that the builder was unable to gain access (after earlier permission was revoked). It is incomplete.

This item was the subject of agreement between the parties (Exhibit 1) and is accordingly allowed as agreed at $1,900.

8.2

Windows:

Windows Condition:

1) Front door is of poor quality there is what appears to be factory damage which may indicate these doors are factory seconds, door will need to be replaced to rectify the problem.

Remove and replace

Oral evidence: The door has surface marks and it is poorly varnished. It was also damaged during installation of door locks and has router marks at its base. He says the workmanship is poor, but no standard contravened. Exhibits 50 and 51 refer.

He says the door must be replaced.

$1500.00

Mr Moore estimates $100 would be adequate to remedy 8.2 and 8.3 if both were accepted.

Fit for purpose

Oral evidence: Mr Moore understands the door was custom made. He does not consider the door is defective.

 

Exhibit 50 indicates that where the locking mechanism at the base of the door is engaged, 4 small marks are visible where paint or varnish appears to have been removed. Mr Fry opines this was done by a router. Exhibit 51 indicates a couple of indistinct marks in or on the timber or inconsistencies in the varnish on the door. These items are very minor.

The suggestion by Mr Fry that the door must be replaced to rectify these issues is unreasonable in my view.

On the balance of probabilities, I accept that there are 2 small patches of inconsistent varnish and that a tool has marked the door during installation of the lock.

I allow damages of $50 for rectification being 50% of Mr Moore’s estimate, as I do not accept 8.3 as defective.

8.3

2) Silicon to glazed sections on the door have been poorly finished, all silicone will need to be removed

Mr Fry says the excess silicon was not cleaned off the glass panels to give a clean edge.

$100.00

Fit for purpose

Mr Moore says he saw no problem as inspected.

I accept Mr Moore’s evidence. The issue identified is not a defect.

The claim is dismissed.

8.4

3) Storm moulds to front door are incomplete and will require rectification.

Provide and paint.

Oral evidence: A storm mould is a bead between the door and the door frame and wall which is typically done, although it is not required by any AS.

$250.00

Oral evidence: Mr Moore agrees that it should be done in accordance with industry practice.

I accept that as a matter of industry standard, this is required and has not been done.

I allow damages of $250 for rectification.

8.5

4) Rear sliding screen door catches on the glass sliding door this requires rectification and possible replacement.

Previously Priced in window section.

Oral evidence: He considers there is a bow in the bottom of the frame of the screen door because it was not installed correctly. He says it is not impact damage.

Mr Fry: replace $800 or repair for $500

Mr Moore: replace $500 or repair $300-400

Impact damage to screen door

Oral evidence: He believed that the screen door had been pushed. It was removed and fixed during his inspection.

Mr Pourasad tendered Exhibit 53, being an email from Darin Dineen at Dowell, suggesting, among other things, that the screen interlock is clashing due to the door sill being out of level. Mr Dineen was not a witness and his assertion can not be tested. However, it tends to support Mr Fry’s contention that there is a problem with the frame. On the balance of probabilities, I accept that the sill/frame is defective.

It is not apparent that there is a defect in the door, as opposed to the bottom sill/frame for the door. It appears that the sill or frame should be replaced, rather than the entire door and rather than repair.

I allow reasonable damages in the sum of $400 for rectification.

8.6

Render to Ensuite window is incomplete

Remove repair and repaint

$800.00

No evidence as inspected

I was informed that there was agreement concerning this issue (Exhibit 1).

By consent, I allow damages in the amount of $800.

8.7

Render to Entry Door Sill is incomplete

Remove repair and repaint

Oral evidence: Mr Fry provided Exhibit 54. The area encased in the red pen outline is the sill he refers to.

He says it must be chipped back to create a bond and the sill tiles will have to be removed.

$1,000.00

No evidence as inspected

Oral evidence: Mr Moore considers the defect as explained is not the alleged defect he understood from the description. He does not consider it a defect in any event: the top and underside of the tile is different to render.

The sill area is a small area under the tile at the front door as shown in Exhibit 54. It is a different material. I accept Mr Moore’s evidence that this is not a defect.

This claim is dismissed.

8.8

Provide Gullies to risers where required in yard area cap all others off.

Repair

Oral evidence: The risers have been provided as per Exhibit 16, page 3, paragraph 1, but the gullies have not. They should have been there during construction although backyard landscaping was not included.

$400.00

Landscape levels not complete therefore the pipe stem cannot be capped

Oral evidence: Drainage, especially field drainage one of last issues to be done: the landscaping levels desired by the owner are unknown. Should be done as part of the landscaping.

Exhibit 16, in the paragraph I was referred to, points out the builder is responsible for adequate drainage during construction, and the homeowner is responsible for it post-construction. I accept Mr Moore’s evidence that field gullies must be placed as part of the landscaping process which, in the area concerned, is not covered by the contract.

I am not satisfied that a defect or incomplete work is identified.

I dismiss the claim.

8.9

Control joints have not been filled and will require mastic jointing, these joints have not been projected to the slab however it appears that there is only one brick course without the joint we do not feel this will cause any real issue with the structure however we are not engineers and this should be confirmed by the consulting engineer for the project.

We are of the opinion that extending these joints maybe (sic) unreasonable and cause more damage than it is likely to prevent as movement at this location is likely to be minimal.

Place Paintable Mastic

$1,200

Articulation joints require infill. Builder unable to complete the contract works as the owner took early possession of the residence

I was informed that there is agreement about this item: Exhibits 1 and 21.

By consent, I allow the item for this incomplete work in the amount of $1,200.

8.9a

Telstra Communications have not been connected. It is unclear as to whether the connection has been contracted to the builder this connection would normally be conducted by the owner Telstra should be contacted to advise as to whether all work is complete on the owners end to establish a connection and viable service, if the works are incomplete the builder should be advised and instructed to make good any remedies that may be required.

Cost Unknown

 

Owner not willing to pay for connection

There is agreement that this is a contractual issue.

The contract did not provide for the connection. There is no evidence that the work performed in the house to establish a viable service is defective.

The claim is dismissed.

9.0

INTERIOR

Painting:

Painting to walls and ceilings:

Painting throughout the residence is at a poor standard. Rectification is required.

Painter to repaint throughout.

Oral evidence: Mr Fry considers the paint appears to be ‘watered down’. He claims that ‘you can see through it in places,’ although he asserts that it cannot be discerned from a photograph. He says the surface has an orange-peel appearance. The cost claimed is to repaint the interior of the entire house.

$9,000.00

No evidence as inspected

Oral evidence: Mr Moore considers the paint work is of quality. He disagrees that you can see through the paint. He did not observe an orange-peel effect but acknowledged that most painters use rollers and this can result in that type of look. He did not observe unpainted areas.

I prefer Mr Moore’s evidence. I do not accept that the painting is defective.

The claim is dismissed.

9.1

Walls and ceilings:

Walls have defective surfaces throughout the residence. Rectification is required.

Plasterer to repair affected walls

Oral evidence: Mr Fry explained that there is an area in the hall where there are at least 2 nail or screw heads that were not plastered over before painting. He denied the suggestion that he was biased in asserting a problem throughout the house which related to 2 nail heads in the hall.

$2,000.00 was Mr Fry’s estimate, although during the hearing he acknowledged it was probably excessive reducing it to $800.

No evidence as inspected

Oral evidence: Mr Moore states that the wall surfaces are not defective and says that this item can not translate to 2 nail heads having been painted.

Mr Fry’s explanation of the alleged defect is surprising. It does not fit with the alleged defect as described.

I prefer Mr Moore’s evidence that the wall surfaces are not defective.

The claim is dismissed.

 

9.2

Timber/Woodwork

This is to be done in a gloss finish paint it currently appears to be done in a low sheen satin with inadequate coverage.

Previously Noted

Oral evidence: This comment is general, rather than in relation to a specific room. Mr Fry concedes that this item doubles-up with other items already considered and can be struck out.

 

Owner request for variation as discussed with builder

The claim for the item is struck out.

 

Cornices:

Ceiling Cornices:

Specification calls up 90mm cornices these appear to have been replaced with square set cornices need to be installed throughout.

Gyprocher (sic) to be engaged to place where cornice is missing.

Oral evidence: Mr Fry concedes that this item is also a double-up of an issue raised in other items and can be struck out.

$3,600.00

Owner request for variation as discussed with builder. Required to be square-set

The claim for the item is struck out.

10

GARAGING

Garage:

General Overall Condition:

The overall condition of the garage has defective or unfinished area's (sic).

Oral evidence: Mr Fry says that the ceiling paint is patchy around the man-hole; and that areas around the entry door to the garage are not finished properly. Mr Fry tendered Exhibit 55, being 2 photographs of part of the entry, one a close up of the area taken with a zoom lens.

Mr Fry says the entry door area shows poor building practice, although it does not contravene any particular AS. Mr Fry says that there might typically be a timber reveal, but says there should be a brick nib rather than a timber frame. He estimates $2500 to fix, saying that he has not seen a new house built in this manner for some time.

 

No evidence as inspected

Oral evidence: Mr Moore denied the paint is patchy. Regarding the entry to the garage, he referred to BM 6 of Exhibit 18 and says that the construction used in it is a common configuration, although he acknowledges that it is a problem area in all residential homes because the garage door needs to be higher than the driveway and the panel door in a recess. If timber is used in the recessed area, it is problematic for water rot. He says it is an ‘easy fix’ on practical completion: the timber is trimmed high enough not to be affected. He estimates $150 to rectify.

Consistent with Mr Moore’s evidence, I can see no evidence of patchiness in the paint around the man hole in BM7 to Exhibit 18. In respect of the entry configuration, I accept that this minor defect. However, the defects list at Exhibit 5 did not identify it. I make the observation that it is difficult to gain perspective from the zoom photo which looks untidy, whereas in the other photo in exhibit 55, it is apparent that the area of concern is very small.

I accept Mr Moore’s evidence and allow damages in the amount of $150.

10.1

1) Ceiling setting is incomplete.

2) Skirting is missing on both sides of the garage door.

3) Manhole to ceiling void has been positioned incorrectly and prevents access to any area of the roof void with the exception of directly above the roof access panel. Due to the poor posting of the Noid access panel it is necessary for a second access point.

4) Wall lining sheet to both sides of door frame has been poorly fitted to the garage door frame and will need rectification.

All items will require repair ceiling will require full repaint

 

$1,200.00

No evidence as inspected

Mr Fry acknowledged that this item is a double-up and can be struck out or deleted.

The claim for the item is struck out.

10.2

Front Doors - Type & Condition

The main garage door is a panel lift style door and is in good condition. Door is currently not operational and will require additional electrical work to allow operation.

Cost unknown we will estimate an allowance of

Oral evidence: Mr Fry suggests in response to questions that that the door may never have been commissioned.

$600.00

Owner decommissioned the door

Oral evidence: Mr Moore says it is part of an operational system which has been decommissioned.

There is no dispute that the system is not currently in commission. Whether the door was commissioned appears to be a matter of conjecture on Mr Fry’s part. It seems Mr Moore’s instructions are that it was. In neither case is the evidence a matter of expert opinion. There is no evidence from Mr Pourasad that it was not commissioned, and this is part of his counter-claim in respect of which he must establish his case.

I am not satisfied on the basis of the evidence presented that the system is defective or was not commissioned/completed by the builder.

The claim is dismissed.

10.3

Floor - Type & General Condition

The concrete floor is generally in fair condition. Front edge has not been finished in a tradesman like manner rectification required

Concretor (sic) to repair edge.

Oral evidence: Mr Fry says the front edge of the garage slab is poorly finished typical of what occurs when the formwork is removed too early. He tendered Exhibit 56 to show what he means. He denied there is no effect claiming that the garage is not being used, because if it was, he’d see tyre marks.

$400.00

Fit for purpose

Oral evidence: Mr Moore points to BM37 of Exhibit 18, and points out that Exhibit 56 must be quite highly magnified. It therefore appears to be minor and confined to a small area and has had no apparent effect since house constructed.

I am satisfied that the complaint made concerns a very small area of the front lip of the edge of the garage slab. I am further satisfied that it has not affected the soundness of the concrete and that it is not defective. At most, it is a minor and inconsequential visual blemish.

I dismiss this claim.

 

11

SITE

Driveway:

Type & Condition:

The concrete driveway has some visible cracking that should be monitored for further movement.

The crack should be cut out and filled with a sealant suitable for driveways.

Grind out and provide suitable joint filler

Oral evidence: Mr Fry tenders Exhibit 57, which he says demonstrates visible cracking which could have been avoided through use of a control joint. He believes it contravenes an AS although he could not nominate it. When asked to consider whether Exhibit 59 demonstrated saw cuts in the driveway, he said he did not consider they were accurate or complete control joints, saying ‘he may have tried to provide a control joint.’

$450.00

No evidence as inspected

Oral Evidence: Mr Moore considers the hairline crack in Exhibit 57 is not of consequence. He says that this is very common in slabs and referred to AS 2870 (although he did not have a copy to tender) as de-emphasising the significance of hairline cracks. He denied that the use of control joints eliminated them, and considered that he would not anticipate that a residential driveway required more than the two saw cuts in Exhibit 59, by way of control joints.

I prefer the evidence of Mr Moore. The hairline crack in the driveway as shown in Exhibit 57 is minor and of no consequence. I am not satisfied that it suggests, much less establishes, that the driveway is defective.

I dismiss the claim.

11.1

Paths/Paved Areas:

Type & Condition:

1) Pavement at entry holds water as there is a hollow in the pavement this requires rectification to prevent water ponding issues.

2) Concrete paths to the rear of the property are approximately 85 mm to (sic) high as they are approximately 10mm above the height of the ORG this allows water to pond towards the ORG allowing storm water to flow into the ORG. Pavements have not been placed in accordance with the engineering details. Removal and replacement required

3) Pavement to front and rear has soil placed under which does not appear to be adequately compacted and protected as it is washing out and will require replacement. This may require the removal of pavements to rectify the problem.

Remove and replace providing adequate falls as detailed in engineering documentation.

Remove and replace pavements to a level compliant with the engineering documentation.

Remove and replace with compacted fill.

1) Oral evidence: Mr Fry explained that his comments relate to the pavement outside the front entry, which he says has no fall. He tendered Exhibit 58, saying that in Photo 1 the spirit level which reads ‘0’, and which he says is sitting ‘front to back’ is sitting on water.

2) Oral evidence:

Mr Fry says that the concrete paths do not comply with the drawings, as the fall must be 1:20 to the pavements (in accordance with Exhibit 16, page 5), that is, be 75mm below the edge of the concrete lip. He says he took laser levels.

He says the overflow relief gully is in a concealed area and he says it is creating ponding. It is illegal to have the ORG where storm water can enter through ponding. The ORG is now non-compliant because it is supposed to be 75mm above the ground area: the fall is back to front.

He relies on AS 3500.2-2003, 4.6.6.7 and 4.6.6.8 (Exhibit 60).

3) Oral evidence:

Mr Fry says that the soil under the pavement has now subsided away from the pavement. He tendered photos at Exhibit 61 (1) and (2) taken on 18 January 2014, respectively said to show 2  inches of subsidence at the rear left hand corner and at the front left hand corner.

Mr Fry says that maintenance is cutting the grass and fertilising. He says that because the pavement slab is unsupported because of the subsidence that it will eventually crack or tilt.

$15,000.00

(Mr Fry’s estimate is to remove and re-do all of the paths and the driveway)

Mr Moore estimates for 11.1.1) $8,000; and for 11.1.2) and 11.1.3) $7,000

No evidence as inspected, adequate slope

Concrete pavement slopes away from the building to permit necessary run-off

Soil subsidence

Minor maintenance required to garden bed

1) Oral evidence: Mr Moore disagrees, and points to BM 62 to Exhibit 18 as demonstrating the fall. He does not consider Exhibit 58 is conclusive of the issue, as there is a clear fall.

2) Oral evidence:

Mr Moore disagrees. He considers that the falls to the perimeter edge adequately sheds water away from the building.

He also considers the ORG is correctly placed, and noted that there is a plumbing approval from the Brisbane City Council which he says would not have been given if that was not so. He disagrees that it cannot sit out in the open. The ORG is in the slab, not in the land. He does not agree the surrounding land is higher than the concrete slab.

He agrees that the AS referred to is applicable.

3) Oral evidence:

Mr Moore also took photos of the area at Exhibit 18, BM 44,48, 59 and 60. He points out that landscaping was only included at the front of the house. He says that he considers the ‘subsidence’ seen is a maintenance issue which should have been avoided by landscaping the back yard in particular.

Mr Moore says that there is no evidence of cracking or movement of the pavement slab. He says subsidence at edges is common relative to turf planting. As it has been finished for 18 months, he thinks its current state is testament to how it will perform.

1) Exhibit 58 does not establish that there is not a fall. I can not see water under the spirit level and even if it is there, that does not establish the issue. I am also not satisfied of its orientation on the concrete given the general unreliability of Mr Fry’s evidence. Exhibit 18 in BM 62 appears to show a fall, In any event I place more weight on Mr Moore’s evidence. Therefore, I accept that there is a fall.

I dismiss this claim.

2) Mr Fry say that the fall in the concrete paths away from the slab is not as required in Exhibit 16, but has not said what he considers it to be. Mr Moore did not measure it, but says it falls to the perimeter edge adequately to shed water.

I am not satisfied that the evidence before me establishes that the fall is not adequate or that it is not in accordance with Exhibit 16.

AS 3500.2-2003 in 4.6.6.7 sets out that the height of the gully riser, or the invert of the overflow pipe, and the finished surface level shall be 75 mm, except where the gully riser is located in a path or paved area, where it shall finish at a level so as to prevent the ponding and ingress of water. 4.6.6.8 sets out the height for gully risers in flood affected areas. There is no evidence to suggest that the subject property is in a flood-affected area. It is therefore irrelevant.

The ORG is in a concrete path. Therefore under 4.6.6.7, the requirement is that it finish at a level so as to prevent ponding or ingress. Mr Fry says it is non-compliant because it is not 75mm above the ground area, and as I understand his evidence, it therefore creates ponding. However, the 75 mm requirement does not apply.

It appears that Mr Fry has misunderstood the requirement in the circumstances presented. I accept Mr Moore’s evidence, which accords with what the AS says.

I dismiss the claim.

3) Landscaping in the backyard was not included in the contract. It is apparent from the photographs that landscaping of the backyard has not been done, (with the possible(since I do not have evidence about who laid it) exception of the laying of gravel beside the side path as seen in Exhibit 18 in BM 48): no top soil or turf has been laid. The level of the landscaping would typically meet the path level. If this was done promptly, soil would not have washed out from under the paths as it would have been supported to stay in place.

The homeowner is responsible for maintaining the property after construction: I accept as Mr Moore says, that Mr Pourasad has not fulfilled that responsibility in respect of the back yard. I am satisfied that maintenance covers a broader range of issues than cutting the grass and fertilising: this assumes there is grass, when in fact none has been laid. Mr Fry leaves out the earlier step of landscaping in making this statement. On the evidence presented, I do not accept that Castle Constructions is responsible for the subsidence.

With respect to the front yard, landscaping was included in the contract. Exhibit 61, photo (2) is a close-up photograph of the same area as appears in Exhibit 18 BM 55 and 56, and again in BM 59. Exhibit 61 was taken on 18 January 2014. Mr Moore took the photographs in Exhibit 18 during his inspection on 2 June 2014. There are no photographs to show the dirt levels at May 2013. However, it is apparent in all of the photographs that the dirt has washed out from under the path near the bins. It appears that the landscaping done did not protect from this undesirable situation. I make the observation that the photographs suggest that the front retaining wall is too low and that soil that may have been present has been able to wash away.

Mr Moore says that maintenance would overcome the issue. Mr Fry says that it cannot because underneath the slab is unsupported which the photos demonstrate. On the balance of probabilities, I accept that there is a defect issue here because Castle Constructions was responsible for the landscaping in the front yard.

On the evidence (and in particular the photographs), I am satisfied on the balance of probabilities that maintenance will be inadequate to overcome the issue. Mr Moore estimates that 11.1.2 and 11.1.3 would cost $7,000 to rectify both: he did not apportion them, but I apportion them equally for these purposes at $3,500 for each item. I allow damages for the rectification of the front path only in 11.1.3, being one half of the defect complained about. I allow 50% of the amount attributable to 11.1.3, that is, $1,750.

11.2

Drainage - Surface Water:

Description:

The drainage at the right side of the property between garage wall and boundary fence is inadequate. As a result, evidence suggests that surface water has been ponding. Poor site drainage can create unstable foundations that may have an adverse structural effect over time. Rectification is required. Ground levels directly adjacent to the building should be reduced and graded appropriately away from the structure alternatively drains may need to be installed to divert seepage and surface runoff water away from the house. The drains should be connected to the existing stormwater drainage system. Please contact a Licensed Landscaper or Builder for further information. Please note changing ground levels where there is a chemical timber pest barrier in place affect the performance of this barrier and void warranties.

Reduce levels and allow for adequate drainage grades away from residence.

Oral evidence:

The area in contention is an area about 6 inches wide as can be seen in Exhibit 18 BM46. Mr Fry says that the builder has not reinstated damage caused during construction and that it should have been handed over well-drained. He says that an agricultural drain could have been constructed at the time of construction and that the ground should have been graded or a concrete spoon drain built.

He acknowledged that the plans do not require an agricultural drain or a spoon drain, although they provide for other drainage (risers) in the back yard. He then seemed to shift his focus to say that this was not about ongoing drainage but drainage during construction, and that none had been provided.

$1,500.00

Landscaping required

Oral evidence: Mr Moore says this area is encumbered by the boundary fence which the builder could not do anything about. He says there is no problem with this localised area. He acknowledges that there must be a fall away from a building in every situation, but that boundaries are different.

Mr Moore says that the plans required risers only as provided. He says this complaint is not about construction drainage, but ongoing drainage which the plans did not require.

 

Mr Fry’s evidence about this issue was confusing. The plans do not require a permanent drain in the area concerned. I do not have any evidence about the drainage in the area during construction. There is no evidence to suggest it was either adequate or inadequate.

Exhibit 16, the report from Geotechniques Foundation Engineering includes a section on Site Maintenance at page 3. It says that the builder must ensure effective site drainage during the period of the contract. After the period of the contract, the builder must pass the report on to the homeowner and draw their attention to the importance of site drainage and that it is then the owner’s responsibility to ensure proper site maintenance (and pass on the report). It further states that failure to maintain the site may result in damage to the structure and that the engineer and builder will not be responsible for damage due to lack of on-going site and foundation maintenance.

On the evidence provided, I am not satisfied that any of the options suggested by Mr Fry as necessary were required by the plans, or that drainage was inadequate during construction. I agree with the statements in Exhibit 16 to the effect that after construction, ongoing drainage and site maintenance is the homeowner’s responsibility.

If any further drainage is now required in the area between the garage and the fence, it is the responsibility of the homeowner.

I dismiss the claim for this item.

11.3

Reinstate Landscaping after remedial works are complete

Reinstatement

Oral evidence: Mr Fry suggests that the ground will be damaged during lowering of rear paths. When it was pointed out to him that there has been no landscaping in the back yard, he suggested that he meant reinstatement as it was at handover.

Mr Fry says $15,000.00

Mr Moore says nil.

Landscaping to front only

Oral evidence: Mr Moore suggested that the costs of any reinstatement necessary were covered by the estimate in 11.1.

As I have not accepted that the rear paths require rectification, this issue does not arise. However, if it had, I would not have accepted damages of $15,000 reasonable to reinstate landscaping of an area that had not in any event been landscaped. I consider the estimate entirely unreasonable.

I accept as Mr Moore says that the estimate of costs for 11.1 does cover any reinstatement that may be necessary.

Footnotes

[1]Schedule 1, Clause 12.

[2]Schedule 3 Excluded Items for Clause 21 are ‘as per tender’.

[3]This is the date nominated for commencement by Mr Piran. Mr Pourasad advised at hearing that he was unsure, but did not dispute the date.

[4]Schedule 1, Clause 10(a).

[5]General Conditions clause 16, especially 16.2(l).

[6]Exhibit 11, attachment B, page 61.

[7]Schedule 4.

[8]Exhibit 2, [26] – [28], attachment KP 21.

[9]Exhibit 2, attachment KP 24.

[10]Exhibit 2, attachment KP 13.

[11]Exhibit 5.

[12]Exhibit 11, attachment Q, letter from Westpac Bank dated 11 September 2013.

[13]The item numbers and cost are drawn from Exhibit 21 and are reflected in Annexure A to these reasons.

[14]Exhibit 4.

[15]See QCAT Practice Direction 4 of 2009.

[16]Exhibit 31.

[17]The Tender is at Exhibit 11, Attachment B, pages 59 – 68; a legible copy of Schedule 1 is at Exhibit 6 — Schedule 6 appears at page 68 and dated 14 November 2012. Another unsigned and different version of Schedule 6 appears at Exhibit 2, Attachment KP 6.

[18]Exhibit 2, Attachment KP 6.

[19]Exhibit 11, Annexure A, page 45, 25.3.

[20]DBCA s 44.

[21]Bettini v Gye (1876) 1 QBD 183.

[22]Emphasis added.

[23]The common law right to terminate will only be excluded when the contract contains a clear intention to exclude it: Holland v Wiltshire (1954) 90 CLR 409; Cooper v Ungar (1958) 100 CLR 510.

[24]Shevill v Builders Licensing Board (1982) 149 CLR 620.

[25]For example see Kelly v Desnoe [1985] 2 Qd R 477.

[26]Quinn Villages Pty Ltd v Mulherin [2006] QCA 433.

[27]Nina’s Bar & Bistro v MBE Corporation [1984] 3 NSWLR 613.

[28]McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457.

[29]See for example, Hoenig v Isaacs [1952] All ER 176 at 180.

[30]Bolton v Mahadeva [1972] 1 WLR 1009.

[31]Bellgrove v Eldridge (1954) 90 CLR 613.

[32]Ibid.

[33]D Galambos & Son Pty Ltd v McIntyre (1974) ACTR 10.

[34]Exhibit 2 attachment Q, page 150.

[35]Exhibit 11, at page 63.

Close

Editorial Notes

  • Published Case Name:

    Castle Constructions (Qld) Pty Ltd v Pourasad

  • Shortened Case Name:

    Castle Constructions (Qld) Pty Ltd v Pourasad

  • MNC:

    [2015] QCAT 17

  • Court:

    QCAT

  • Judge(s):

    A/Senior Member Howard

  • Date:

    21 Jan 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bellgrove v Eldridge (1954) 90 CLR 613
2 citations
Jump To
Cite 1 - (1954) 90 CLR 613
Cite 2 - (1954) 90 CLR 613
Bettini v Gye (1876) 1 QBD 183
2 citations
Jump To
Cite 1 - (1876) 1 QBD 183
Cite 2 - (1876) 1 QBD 183
Bolton v Mahadeva [1972] 1 WLR 1009
2 citations
Jump To
Cite 1 - [1972] 1 WLR 1009
Cite 2 - [1972] 1 WLR 1009
Cooper v Ungar (1958) 100 CLR 510
2 citations
Jump To
Cite 1 - (1958) 100 CLR 510
Cite 2 - (1958) 100 CLR 510
D Galambos & Son Pty Ltd v McIntyre (1974) ACTR 10
2 citations
Jump To
Cite 1 - (1974) ACTR 10
Cite 2 - (1974) ACTR 10
Hoenig v Isaacs [1952] All ER 176
2 citations
Jump To
Cite 1 - [1952] All ER 176
Cite 2 - [1952] All ER 176
Holland v Wiltshire (1954) 90 CLR 409
2 citations
Jump To
Cite 1 - (1954) 90 CLR 409
Cite 2 - (1954) 90 CLR 409
Kelly v Desnoe [1985] 2 Qd R 477
2 citations
Jump To
Cite 1 - [1985] 2 Qd R 477
Cite 2 - [1985] 2 Qd R 477
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
2 citations
Jump To
Cite 1 - (1933) 48 CLR 457
Cite 2 - (1933) 48 CLR 457
Nina's Bar Bistro Pty Ltd v M.B.E. Corporation Pty Ltd (1984) 3 NSWLR 613
2 citations
Jump To
Cite 1 - (1984) 3 NSWLR 613
Cite 2 - (1984) 3 NSWLR 613
Quinn Villages Pty Ltd v Mulherin [2006] QCA 433
2 citations
Jump To
Cite 1 - [2006] QCA 433
Cite 2 - [2006] QCA 433
Shevill v Builders' Licensing Board (1982) 149 CLR 620
2 citations
Jump To
Cite 1 - (1982) 149 CLR 620
Cite 2 - (1982) 149 CLR 620

Cases Citing

Case NameFull CitationFrequency
Castle Constructions (Qld) Pty Ltd v Pourasad (No 2) [2015] QCAT 2164 citations
Haimes v Queensland Building and Construction Commission [2024] QCAT 3262 citations
Hopper v Queensland Building and Construction Commission (No. 2) [2019] QCAT 2124 citations
Waymore Constructions Pty Ltd v Wyatt [2020] QCAT 2514 citations
1

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