Bakker & Kramer v Richards Projects Pty Ltd [2013] QCAT 388

CITATION: Bakker & Kramer v Richards Projects Pty Ltd [2013] QCAT 388 PARTIES: Jan Bakker and Anna Kramer (Applicants) v Richards Projects Pty Ltd (Respondent) APPLICATION NUMBERS: BDL048-12; BDL232-12 MATTER TYPE: Building Matters HEARING DATE: 29 & 30 April 2013 HEARD AT: Brisbane DECISION OF: Michael Howe, Member DELIVERED ON: 26 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Jan Bakker and Anna Kramer pay Richards Projects Pty Ltd the sum of $6,601 plus interest of $3135.92 by 9 August 2013. CATCHWORDS: BUILDING MATTERS - Domestic building dispute and minor debt claim heard together – general rule for assessing damages in building cases – the qualification rule that the rectification proposed be reasonable – definition of deck – definition of verandah – efficacy of termite barrier – loss of amenity - costs – costs of minor civil dispute minor debt heard in building list Queensland Civil and Administrative Tribunal Act 2009, ss24(1)(c), 28(3)(b) and (c) Domestic Building Contracts Act 2000, ss42(1), (5) and (6), 51(2) Queensland Building Services Authority Act 1991, ss42(14), 79, 84 Bellgrove v Eldridge (1954) 90 CLR 613 Briginshaw v Briginshaw (1938) 60 CLR 336 Lida Build Pty Ltd v Miller & Anor [2013] QCATA 139 -- 1 of 17 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: The Applicants represented themselves. RESPONDENT: The Respondent was represented by its director Robert Richards. REASONS FOR DECISION [1] In June 2010 Mr Bakker and Ms Kramer engaged Richards Projects Pty Ltd, builders, to build them a home on their land at Reedy Creek. They signed a residential building contract on 4 June, 2010. It was a large home, steel framed and in brick veneer. [2] Mr Bakker and Ms Kramer had previously engaged another builder to do the job, but that builder had done some preparatory work only. Mr Bakker and Ms Kramer already had the prefabricated steel frame on site and they supplied existing plans to Richards. [3] Richards built the home. The owners weren't entirely happy however. They refused to pay the last amounts claimed by Richards. [4] The Building Services Authority (BSA) was called in. They made recommendations and Richards rectified certain items of complaint. The BSA was called in a second time by the owners who had fresh complaints but the BSA declined to make further orders1. [5] Richards applied in the minor civil dispute jurisdiction of QCAT to recover the balance monies owed to it. Mr Bakker and Ms Kramer commenced proceedings for a domestic building dispute in the Tribunal. The matters were ordered to be heard together. The Claims [6] Richards seeks payment of $14,794 as the balance monies still owing under the contract. Mr Bakker and Ms Kramer initially sought $50,000 cost of rectification in their domestic building application and relief from payment of $13,525 of the moneys claimed by Richards, but by time of hearing the cost of rectification claimed had grown to $120,315. The Garage [7] The garage is the most significant item in dispute. According to the builder, a major problem was revealed with the proposed garage before construction. The Council said the driveway gradient was a problem. To compensate the garage floor had to be lowered approximately 600 mm. To do that, retaining walls had to be built at the back and sides of the garage. The scope for retaining walls was limited because the house was built tight to the boundaries. 1 Relying on s42(14) Queensland Building Services Authority Act 1991 (unfair to require the builder to perform rectification work). -- 2 of 17 -- 3 [8] The changes were made but according to the builder those changes required a further change to the walls of the garage. In end result, the garage walls as built intrude approximately 30 mm into the planned garage space of 8440 mm by 6230 mm. [9] The owners’ principal complaint seems to be that the plans were not altered to reflect the minor reduction in space. Second that they didn’t realize the garage floor would be lowered by 600 mm. Third the reduction of 30 mm in each wall makes it inconvenient for Mr Bakker to open his car door. Last the walls are out of plumb. In consequence they want the garage demolished and rebuilt at a cost of $92,462. [10] Mr Hillery, the builders construction manager for the job, gave evidence that before the garage was built he discussed the matter with Mr Bakker and explained to him the Council requirements which necessitated a lowering of the garage level and discussed with him moving the garage wall in some 30 mm to allow the wall to sit down on the garage floor and cover the retaining wall. Mr Bakker disputed the discussion being held and that he agreed with the end result, though his evidence on the point I found vague and inconclusive. Mr Hillery was very clear on the matter of discussion and content. I accept Mr Hillary's evidence that prior to construction of the garage all necessary aspects of the changes to be made were discussed and agreed to by Mr Bakker, who throughout acted on behalf of both owners. [11] It is inappropriate that the owners now fall back on a claim that the changes agreed to were never reduced to writing and therefore their oral concurrence in the changes do not bind them. [12] It is not a matter whereby the builder seeks to recover some additional amount for a variation to a contract not put into written form2. No additional costs were claimed by the builder against the owners to effect the necessary changes. In fact an amount that would otherwise have been payable to the builder for bored piers which were not needed because of changes to the garage has been offset and credited to the owners ($178). The credit is noted in a variation document initialled by Mr Bakker3. It confirms to my mind that Mr Bakker knew and agreed to the changes with respect to the garage. Furthermore, in an e-mail dated 3 April, 2011 to the builder4, Mr Bakker challenges the limited savings credited to him with respect to the bored piers. [13] Concerning Mr Bakker’s complaint that opening his car door is now more difficult than originally contemplated, it should be understood that the general rule for assessing damages for building work not in conformity with contract is the difference between the contract price of the work and the cost of making it good in accordance with contract. That rule is qualified however in that the work proposed to make good must be a reasonable course to adopt in the circumstances5. Demolition of the existing garage as proposed because of the loss of 30mm door opening space is not reasonable. 2 Domestic Building Contracts Act 2000 ss79, 84. 3 Exhibit (Ex) 6 item C27. 4 Ex 1. 5 Bellgrove v Eldridge (1954) 90 CLR 613 at 617. And see Lida Build Pty Ltd v Miller & Anor [2013] QCATA 139 at [22]. -- 3 of 17 -- 4 [14] Furthermore I do not accept that the loss of 30 mm has resulted in greater difficulty to Mr Bakker in opening his car door and thereby utilizing his garage area. I consider the change involved trivial. [15] Both parties called expert evidence by way of independent builders. Mr McCarthy for the owners suggested the left side garage wall was out of plumb. He said it was difficult to accurately measure the deficiency. Mr Richards says it is plumb. There was no complaint about this to the BSA though an inspector attended the premises on two separate occasions - indeed I note the lack of complaint to the BSA generally about the garage. If the plumb defect exists, I conclude it is not noticeable to the eye, insignificant and does not require rectification. [16] At hearing there was some suggestion that the garage had been built smaller than provided by the plan dimensions. It became clear however that any error was a typographical error of the draftsman and his mathematics. [17] The complaint concerning the garage fails. Kitchen Cabinet [18] The owners complained about a moisture stain on the backing board of a corner kitchen cupboard. The cabinet had been supplied and installed by the owners but Mr McCarthy suggested water may have entered from a defective silicone seal at the kitchen window reveal above the benchtop. Mr McCarthy said the corner cupboard and benchtop should be removed and replaced at a cost of $1,870. [19] The window was not directly above the area of stain. Mr McCarthy did not identify any moisture problems in the cupboard at the time of his inspection. Mr Corn, a builder who gave evidence for Richards, said there was no actual water damage to the cabinet and no evidence of any water trail between the kitchen window and the stain. He suggested there should be one if the stain was caused by water coming from the window. That makes sense. [20] Mr Corn suggested it was as likely as not that the stain existed at the time of manufacture of the cupboard. There is no evidence suggesting structural problems with the subject backing board. On balance I conclude that the stain is not likely to have been caused by water ingress at the window seal. Therefore I cannot conclude the stain is the result of defective work on the part of the builder. I allow nothing in respect of this head of claim. Colorbond Roof [21] The owners claim for the costs of cleaning the colorbond roof from paint marks and the replacement of a damaged sheet. [22] Neither expert actually went up onto the roof to look at the damage. The matter of a damaged sheet above the rear of the garage (which appears to be the area over the back of the balcony where the present damaged sheet is said to be) had been a matter of previous complaint to the BSA. The -- 4 of 17 -- 5 builder was directed to rectify the problem and Mr Richards gave evidence the sheet was replaced. [23] Mr Corn said it was hard to see any damage to any sheet. Mr Richards said the only issue that may remain is some minor silicone staining that might have to be removed. [24] Mr Richards pointed out that other people had been on the roof since he was on site, which was not refuted. [25] There was no mention of paint marks on the roof in the BSA report6. I accept Mr Richards evidence that he replaced the damaged sheet identified in the BSA report. I conclude any damage to sheets which now exists occurred subsequent to the builder's involvement on site. I accept there may be minor silicone contamination yet to be removed. Mr Corn's estimate of the costs to do that is $100. The owners are entitled to be paid that under this head of claim. Concrete Slab [26] There is a gap between the concrete pavement at the right front side of the dwelling and the ground. The concrete pavement is also out of alignment with the wall. This matter is confusing because during hearing it became clear that the slab has been replaced once already. [27] The second BSA report7 estimates the gap at 100 mm. Mr Richards says he purposely dug away the soil beneath the slab at the direction of Mr Bakker. Mr Bakker denies that. Mr Richards did not make explain or make clear just what he was trying to achieve in digging away the soil, at least not to my satisfaction. [28] Mr McCarthy suggests the concrete slab may collapse and should be removed, again at a cost of $1,870. Mr Corn says in his opinion it will not collapse. The slab has been there for some time now. The gap between the concrete and the soil can be filled with an expanding grout. His estimate to do that is $280. Mr Corn's proposal seems appropriate and reasonable in the circumstances. Generally I might say I found Mr Corn’s evidence showed a more balanced and reasonable approach to remedial measures necessary to rectify defective building work than that of Mr McCarthy. [29] The slab was also out of alignment however. I have no evidence before me about the additional cost to remedy the alignment defect. In the circumstances I propose to allow $500 all up in respect of all work necessary on the slab both as to gap and alignment. [30] At hearing there was also mention made by Mr Bakker of an additional cost to the owners for wasted block work. The cost was not quantified and the claim mentioned in passing in the proceedings. I do not allow any additional sum for that. 6 Ex 15. 7 Ex 14. -- 5 of 17 -- 6 Silicone Seals [31] The owners complain that some gaps in tiles at the entries to the upstairs bathrooms require silicone sealing. It would appear grout had been inserted but has come away. Mr McCarthy says the gaps need widening to ensure the silicone is effective. Mr Corn says the silicone will fill the existing gaps. Mr Smith, a tiler who did tiling work at the house, gave evidence that the silicone could be applied directly to the existing gaps. He said it was tiler’s work. His cost estimate for that was $60, the cost of a tiler for one hour and one tube of silicone. I accept the silicone seal is necessary and the reasonable cost of rectification is $60. Verandah Floor [32] The verandah above the garage is covered but rain sometimes enters through the open sides. The rain pools on part of the floor. The floor is level. It has no fall. [33] The BSA concluded the tiling on the verandah floor was defective work in that they were not laid flat and true to a tolerance of plus or minus 4 mm in a length of 2 metres "from the required plane". The builder was identified as the person responsible for that defective work, but the BSA did not direct rectification in the circumstances8. The builder maintains the problem lies with the steel frame beneath the floor supplied by the owners. Mr Richards says the steel beam beneath the floor has deflected. That has caused the problem with the tiled floor. [34] Mr McCarthy does not agree. [35] Engineers have considered the matter9. Their conclusion is that the pooling of 8 mm observed by the BSA is consistent with beam deflection and the pooling is an "inherent result of the way the floor framing is designed". The solution, the engineers say, is an extra steel support post mid-span or altering the flooring layout designed to reduce load. [36] I accept the conclusion of the engineers. [37] Mr McCarthy for the owners says additionally however that the floor has no fall, it is a deck, it should have fall, and the compressed sheeting tile base has therefore been laid incorrectly. Mr McCarthy refers to the document Technical Specifications James Hardie Compressed Sheeting Decking Construction10. He suggests those technical specifications call for fall and manufacturer recommendations must be followed. [38] The recommendations of manufacturers of materials do form part of the relevant criteria for use of materials in construction11. 8 Domestic Building Contracts Act 2000 ss 79, 84. 9 Ex 6 item B10 letter Rymark Engineers Pty Ltd 20 March, 2013. 10 Ex 10. 11 Domestic Building Contracts Act 2000 ss 42(1), 42(6). -- 6 of 17 -- 7 [39] Item 2.1 of the James Hardie Decking Technical Specifications states decks must have a fall of at least one in 100 mm to avoid ponding. Part 10 of the specifications is a detail showing such recommended fall. [40] There is nothing however in the technical specifications which talks about decks under cover. The word deck is variously defined in a number of dictionaries, not all of which allude to a verandah scenario. In the Collins Concise English Dictionary the word “deck” is defined as a nautical term meaning any of various platforms built into a vessel, or a similar platform as in a bus. The term “verandah” however is defined as a porch or portico, sometimes partly enclosed, along the outside of a building. [41] The Oxford Dictionary Online defines deck in similar terms to the Collins but also adds that it is a timber platform or terrace attached to a house or other building. It says in respect of a verandah that a verandah is a roofed platform along the outside of a house, level with the ground floor. [42] Dictionary.com defines deck as an open unroofed porch or platform extending from a house or other building. It defines verandah as a large open porch usually roofed and partly enclosed as by a railing often extending across the front or sides of a house. [43] Drawing WD-06 in this matter describes the area concerned as a covered verandah, not a deck. I do not consider the term deck and verandah is synonymous. I conclude the draftsman who prepared the drawings here used the term verandah advisedly. [44] As such I do not accept that the technical specifications referred to by Mr McCarthy necessarily apply to the covered verandah the subject of the present claim. The BSA did not say there was defective work in respect of the verandah because there was no fall. [45] Mr Richards, who is a builder, said there was no requirement to have fall because the area was roofed. Mr Corn, the building expert, agreed that no fall was required where an area is roofed. [46] The tiler Mr Smith also drew to my attention the fact that the plans called for at least a 50 mm drop between the door and the verandah. Indeed I note Mr McCarthy’s deck specifications also requires a similar 50 mm drop between any door going out onto a deck. The tiler pointed out it was impossible to obtain such drop unless the tiles were laid on the verandah as per drawing, that is, without fall. [47] Mr McCarthy says that the lack of fall should have been brought to the attention of the owners. I do not conclude that the verandah required fall. I therefore do not agree the matter was required to be brought to the attention of the owners before proceeding with the construction. [48] Mr Richards points out that in the lower floor a working drawing of an outdoor entertainment area specifies fall. The upstairs verandah drawing does not. I cannot see why the builder was obliged to do more than follow the plans. The plans had been drawn by the owners’ draughtsman and certified by engineers as complying with the Building Act 1975. -- 7 of 17 -- 8 [49] The lack of expansion joints on the verandah was also raised. On this point I accept the evidence of Mr Smith the tiler that there was sufficient movement around the external area of the verandah such as not to warrant an expansion joint in the centre. [50] Further concerning the evidence of Mr Smith, he said using a 3.6 metre straight edge from the front to the rear of the verandah at the time of tiling he was able to determine that the area was near flat. He found only a 1 to 2 mm difference in the plane of the floor. I accept his evidence on that point. [51] I conclude beam deflection occurred after the laying of the tiles on the verandah and resulted in the 8mm bow in the floor. Accordingly the respondent builder has no responsibility to rectify the floor. The fault herein, if any, lies with the draughtsman and the floor design beneath the verandah. Grout Discolouration [52] According to the owners, the tiled floor in the bathroom and ensuite show grout discolouration. Mr Richards says only the bathroom remains in issue, the ensuite is not affected. Given Mr Smith’s evidence however, that both areas were affected and he was not able to rectify the problem, I conclude both areas were affected. [53] The owners expert maintains the only explanation he can think of to cause the grout discolouration is that water is leaking under the tiles from the showers. He suggests there are no water stops under the edges of the showers. [54] Mr Richards attributes the problem to a previously leaking toilet, which leak has been remedied. [55] Mr Smith the tiler was adamant he put in water stops to each hobless shower, that is 40 mm aluminium angles isolating each shower base. He also added one at each doorway. [56] Mr Smith said tried to fix the discolouration. He regrouted one marked area using the same coloured bag grout as he used in the original job. On removing the grout he found excess water inside the tile bed which could have contributed to the discolouration. He took advice about the discolouration. He asked grout professionals to regrout the areas at his expense. They quoted $400 to $800 for the job sight unseen. Those professionals warranted their work regardless of moisture content. Unfortunately they weren’t allowed onsite by the owners. That was not controverted at hearing. [57] Mr Bakker disputes Mr Smith’s claim he tried rectification. Mr Smith was adamant about the point. I accept the evidence of Mr Smith in preference to that of Mr Bakker. I also accept Mr Smith’s evidence that he did add water stops to both bathrooms. -- 8 of 17 -- 9 [58] The BSA report12 draws no link between the discoloured grout and leaking showers. The BSA’s recommendation was to dry out the floor over a long time until the moisture no longer migrated to the surface. [59] I conclude that more probably than not the cause of the discolouration is as suggested by both the tiler and the BSA, water pooling in the tile base from the leaking toilet that has been repaired. It is unclear how long the owners must wait for the discolouration to go if they follow the course suggested by the BSA, to simply wait until it dries. The ongoing discolouration constitutes ongoing defective work which I accept affects the amenity of the dwelling. [60] I accept Mr Smith's suggestion as to his proposed solution, namely allow experts to re-grout the floor to a uniform finish regardless of moisture content. He said the cost quoted to him by those experts was between $400 and $800. Mr Corn put the cost of regrouting at $800 in the Scott Schedule. I allow rectification costs under this head of claim of $800. Chipped and Broken Tiles [61] The owners complain there are chipped and broken tiles and uneven grout lines in the powder and ensuite walls. Mr McCarthy estimates between 30 and 40 tiles are affected. Mr Corn initially said in his evidence only a couple then settled on perhaps 10. The BSA report13 makes reference to one chipped tile of approximately 1.5 mm in length below the external corner PVC trimming to the ensuite windowsill. The BSA report makes no reference to uneven grout or additional problem tiles. [62] I conclude the number of affected tiles are few and any resultant visual defect minimal, certainly not reducing the value of the property. Mr Corn's estimate of the costs of repair for both bathrooms based on 10 affected tiles is $300. He does mention a potential problem if new tiles cannot be purchased to match, however that possibility was taken no further by the owners at hearing and there was no evidence about that. I allow the estimate of $300 to remedy all defects with respect to tiling in the ensuite and powder rooms. Cistern [63] There is a complaint that the cistern in the powder room was incorrectly fitted. The evidence concerning this was confusing. It is not clear what the ongoing problem is. Mr Bakker said in his evidence the toilet hadn't been used for 2 years and the tiles were cracked. He said the problem was the internal cistern support brackets were improperly fitted. Mr McCarthy for the owners states in a report he prepared14 (on about 10 April, 2013) that the cistern was loose and out of level. [64] The matter was the subject of complaint to the BSA. The BSA15 observed a defect with the toilet pan, and that was that the toilet tilted away from the wall, not that the cistern was loose. 12 Ex 14. 13 Ibid 14 Ex 4. 15 Ibid. -- 9 of 17 -- 10 [65] Prior to the inspection of the BSA however16 the owners engaged their own plumber to repair the toilet in the powder room. Ashmore Plumbing Service attended and worked on the cistern on or about 30 December 2011. After that the owners got in yet another plumber, Charlie the Plumber, on 19 January 2012 who did further work, or repeated the work of Ashmore Plumbing Service. Again, the matter was not made very clear. [66] An invoice document from Charlie the Plumber17 mentions the pan not being secure but makes no mention that this has caused tiles to crack. [67] The BSA concluded the purported rectification of problems by Ashmore Plumbing Service compromised the complaint as against the builder. Accordingly the BSA refused to direct rectification work on the cistern by the builder. [68] Mr Bakker still maintains a claim against the builder however for incorrect installation despite two different plumbers being engaged to work on the problem after the builder installed the system. Mr McCarthy supports Mr Bakker’s complaint though he has had no actual access to the cistern because it is an internal wall cistern. He relies on photographs to reach his conclusions which photographs show one of the support legs of the cistern is truncated because the waste pipe is in the way. Mr Richards says that was the only way the builder could construct the cistern given the whereabouts of the waste pipe and the structure was however made solid. [69] Ashmore Plumbing Service make mention in their invoice18 of finding the toilet on an angle and it being incorrectly installed. They also appear to say they cracked tiles when removing the toilet and putting the toilet back correctly. They reset the tiles. It is not clear what part of the charges on their invoice relates to the work on this cistern. They removed and reinstalled three toilets at the house that day. [70] It was also not made clear why the attendance of the second plumber, Charlie the Plumber, was necessary on 19 January, 2012. He seems to have redone all the work done by Ashmore Plumbing Service. That plumber concluded the cavity wall was not plumb and the bracket support system of the cistern having been cut had left the pan insecure. Charlie the Plumber tightened and adjusted the pan fixing bolts and added silicone. [71] Originally the owners had specified a flush valve toilet system which required no cistern. That system required, unbeknownst to the builder at time of installation, a 25 mm diameter water supply. The house had a standard 19 mm water supply. The flush valve systems didn’t work properly. The BSA directed the builder to install in-wall cisterns in lieu. The builder's obligations to exercise reasonable care and skill continue to apply to the rectification work associated with installation of the in-wall cisterns. 16 17 January 2012. 17 Ex 1 Page 51. 18 Ibid Page 49. -- 10 of 17 -- 11 [72] Whilst the two plumbers mentioned were not called to give evidence the Tribunal is entitled to inform itself of matters in any way it considers appropriate19. The Tribunal is not bound by the rules of evidence20. [73] Considering the reports by those plumbers and noting Mr Richards evidence, I conclude the cistern in the powder room was not installed with due care and skill and was defective work. Mr McCarthy's estimate includes the cost of possible replacement of the cistern. I do clearly understand why the system requires yet additional work, however, I conclude in the circumstances with the apparent ongoing problems the appropriate thing to be done is replace the unit entirely. Alternatively the costs associated with rectification by the two independent plumbers should be refunded to the owners. Those costs appear to be very close to the cost of replacement now claimed in any case. I accept Mr McCarthy’s estimate of cost of replacement of $598 as moneys due the owners under this head of claim. Dwarf Walls [74] The complaint here seems simply to be that the plans call for walls of 1200 mm in height and the walls are actually 1270 mm high. [75] Mr Richards says the cisterns eventually fitted into those walls required the full 1270 mm space anyway. I consider that a most fortunate circumstance for the builder but nothing more. Mr McCarthy admitted in his evidence there was no visual impact to a viewer with the wall at 1270 mm rather than 1200 mm. I note the problem was not the subject of any complaint to the BSA. [76] Mr Bakker added in his evidence that more tiles were thereby required to be used, which is probably correct. [77] In my opinion what loss of amenity has resulted to the owners is marginal if anything and for some considerable time after construction must not have been considered sufficiently detrimental to warrant them complaining to the BSA about it. I have no evidence suggesting the walls constructed at 1270 mm height rather than 1200 mm height will result in a lessening of the value of the premises. Nor is there any evidence as to the additional costs incurred with respect to use of extra tiles. [78] The proposed remedy by Mr McCarthy of demolishing the walls and rebuilding them 70 mm lower is in my opinion an unreasonable and an unnecessary one in the circumstances21. No award is made in respect of this item of claim. Moisture Entry to Garage [79] There is a complaint that moisture is entering the garage at weep holes covered by part of a concrete path. The builder says this was an extra to the contract and he was asked to build up to that level by Mr Bakker for landscaping purposes. I conclude that was probably so, however the outcome is water penetration into the building. 19 Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(c). 20 Ibid s 28(3)(b). 21 Bellgrove op cit at [617]. -- 11 of 17 -- 12 [80] Also of potential significance however is that this height of slab may have compromised the efficacy of the termite protection barrier of the dwelling. There is potential access to the building by termites via the weep holes. Mr Richards and Mr Corn talked about filling the weep holes with silicone, however one wonders how that can be done without the concrete being removed. In the Final Site Advice document from the certifiers22 dated 16 March, 2011, specific advice is given that all ground levels must be 75 mm below the termite barrier. Given the build-up of soil beneath the concrete at the weep holes one assumes this requirement has been breached. [81] Mr Bakker says that depending on the atmospheric conditions, the water entry into the garage can be severe. Water also enters the garage at another point, however that water entry is not the subject of complaint. [82] To my mind the construction of the path at its present height amounts to defective building work. The path must be removed, the weep holes exposed and the integrity of the termite barrier maintained. [83] Mr McCarthy’s cost estimate for this is $2,624. Neither Mr Richards nor Mr Corn gave any estimate for this work. That cost of removing the path concerned, though only an area of 1 m x 2 m, seems high but in the circumstances it is the only estimate to hand. Accordingly I award to the owners that amount in respect of this item of claim. [84] That Mr Richards may have been asked to lay the slab at the wrong height by Mr Bakker does not change the fact that this is defective building work. To shift responsibility to the owner in such circumstances the builder needs point to written advice by him recommending against such23. Mr Richards has not done that. Bowed Doors [85] The owners complain the laundry and garage internal doors are bowed and do not open correctly. Mr McCarthy estimates a bow of 10 mm, whilst Mr Corn says there is no more than 4 mm and a bow under 4 mm is acceptable. A photograph of one of the doors24 clearly shows, to my eye, a significantly greater bow than 4 mm. The experts agree that if the doors must be replaced the reasonable costs of replacement is $300. There was mention made at hearing that this may be a warranty item, but no evidence on that point was led. I conclude the doors should be replaced. The cost of replacement of $300 is allowed the owners. Front Entry Door [86] The owners complain the front door has not been painted with weather resistant paint and the paint is peeling. Mr McCarthy suggests given the age of the paint it should not be in the state it is if appropriate paints were used. He says the door should be removed, cleaned, sanded and repainted. His estimate of the cost of that is $370. 22 Ex 20. 23 Domestic Building Contracts Act 2000 s 51(2). 24 Ex 16 item 22. -- 12 of 17 -- 13 [87] Mr Corn says this is a normal maintenance problem and the problem is attributable to normal wear and tear – sun damage. I accept that. Mr Corn said surfaces exposed to the sun should be painted annually. That does not appear to have been done. [88] The Tribunal makes its findings in relation to disputed issues on the balance of probabilities. The Tribunal must be reasonably satisfied about the correctness of a decision reached about an issue25. I cannot be satisfied that the damage to the paint here is due to use of incorrect paint. Mr Richards denies that the wrong paint was used. Mr McCarthy reaches his conclusion because of the level of peel. Mr Richards and Mr Corn both say it is exposure to the elements which is the problem, and there is nothing unusual here. [89] I cannot conclude the builder has failed to use appropriate product in the circumstances. This item of claim is not allowed. [90] On similar reasoning of not being appropriately persuaded I do not allow the claim for 3 extra remote control keys26 for the garage doors. Paint and Render [91] The owners also complain that certain rendering and paintwork has not been completed. There are two separate heads of claim concerning such referable to different areas of the home. The dispute here is about the costs of rectification. Mr McCarthy has quoted estimates of the repair based on a tradesman performing each set of repairs as distinct jobs on different days. That builds the costs of repair. [92] Mr Corn says the painter would complete both jobs on the same day and the cost saving should be recognised. I accept Mr Corn's submissions on this point. I would be surprised if the course proposed by Mr McCarthy occurred in practice. [93] Mr McCarthy added to his calculations of costs the price of scaffolding, a cherry picker and other sundry items which Mr Corn says would be unnecessary. All the painters will need, says Mr Corn, will be roller extensions. I accept Mr Richards evidence that the rendering has effectively been done and all that remains is painting. The photographs27 tendered by the owners bear this out. I agree with Mr Corn that colours today can be fairly easily matched. Mr McCarthy expressed great concern about colour matching. I allow the owners rectification costs under these heads of claim in the amount of $550 as proposed by Mr Corn. Garden PowerPoint [94] The owners say the builder failed to provide external electrical power points in accordance with the contract. They point to a diagram28 indicating such 25 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2. 26 Scott Schedule item 25. 27 Ex 16. 28 Ex 13. -- 13 of 17 -- 14 were to have been installed. The diagram is not initialled or signed by the parties. [95] Mr Richards responds that the diagram referred to was simply a preliminary document and what was agreed changed by the time of contract. Mr Richards points to a different diagram, signed by both parties, which does not show any external power points away from the house29. I accept the contracted electrical drawing is that as indicated by Mr Richards. It is not disputed electrical connections in accordance with the drawing produced by Mr Richards was not provided. I determine the builder is not in breach on this matter. [96] On this point I also note the document entitled "Construction Selections and Specifications – page 7 of 9" which forms part of the contract provides "electrical inclusions – 5 off (sic) waterproof double power points onto house (nil underground)". This supports Mr Richards argument and refutes that of the owners. Tile Cleaning [97] Finally the owners complain that the floor tiles have been laid with a wax coating from the manufacturer and that wax coating should have been cleaned away "as per contract". At hearing Mr Corn pointed out there was only the standard builder’s clean referrable to this item and such did not extend to cleaning wax from tiles before grouting. I accept this was not a task falling within a builders clean. [98] Mr McCarthy said there was a school of thought, apparently in the United Kingdom, which said a builder should remove wax from tiles before grouting. Mr McCarthy's evidence was very general on this point and he also admitted "no one is on it too much" which I took to mean builders in Australia do not generally do it. [99] I do not accept this work fell to the builder under the contract. It was not noted in the contract as an extra and it would have had to have been to be the builder’s responsibility. The owners claim here fails. Agreed Items [100] Certain items of complaint were agreed to by the parties as requiring rectification and the costs associated therewith. In this regard fall items 7, 8, 9, 18, 19 and 23 of the Scott Schedule totalling $637. [101] Additionally some items were agreed as being warranty claims rather than the responsibility of the builder. In this category come items 16, 17, 28, 29 and 30 of the Scott Schedule. [102] I therefore total the moneys due to the owners by the builder in respect of defective work at $6,469. The Builders Claim 29 Ex 6 Item C4B24. -- 14 of 17 -- 15 [103] The builders claim in the minor debt proceedings was for balance owing under the contract of $13,070 plus interest at 20% on outstanding monies and the costs of supplying two in-wall toilet systems for $1724. Mr Richards seems to allude to additional costs of $1400 for the plumber and $712 for the tiler in other documents30 but those additional amounts are not included in his minor debt claim document. [104] The minor debt proceeding was transferred to the building list and ordered to be heard together with the owners building claim. [105] By e-mail dated 3 April, 201131 the owners freely admitted they owed $13,235 to the builder. Subsequently the owners advised the BSA officer who attended for inspection on 29 August, 2011 they owed $13,300 to the builder under the contract including variations. In his minor debt claim the builder’s claim was for $13,070. I accept that latter amount is the extant under the contract and outstanding to the builder by the owners before setoff. [106] I should note I accept that a credit for bored piers not used because of the change in construction of the garage was agreed to between the parties after offsetting the cost of the retaining walls. I accept Mr Hillery's evidence on this point32. The credit was an amount of $178 which is set out in variation 5 signed by the parties dated 23 December, 201033. The owners are due nothing more in respect of that item. [107] As to the claim for the cost of the in-wall toilet systems by the builder, Mr Richards said the builder before him had already installed a 20 mm water service to the property. Mr Richards did not make clear just what that meant however and what cost would have been entailed in replacing the 20 mm water service with a 32 mm water service. The 32 mm service was necessary to supply the flush valve toilet systems wanted by the owners. All that is said in the builder’s minor debt claim particulars is that the previous builder "abandoned the project at site preparation stage after arranging the water and sewerage connections". That additional cost of changing the 20 mm service to 32 mm service would have been a cost to be paid by the owners. [108] By the time the flush valve systems were found to operate inadequately however, the systems had already been installed with the 20 mm water service throughout the house. [109] In the circumstances there was no warranty by the builder that the toilet systems nominated by the owners would be suitable for the purpose for which they were intended34. The flush valve toilet systems were supplied by the owner without recommendation by the builder. 30 Ex 6 Document B – Response to Experts Report. 31 Ex 1. 32 Ex 23. 33 Ex 6 Item C27. 34 Domestic Building Contracts Act 2000 s42(1), 42(5). -- 15 of 17 -- 16 [110] The owner supplied flush valve systems were delivered by the owners at fit off time35. As stated however, the 20 mm water service had already been installed through the house by that stage. [111] According to affidavit evidence of Mr Lance Stevenson, the builder’s supervisor of construction, at the time of installation the plumber installing the flush valve systems was concerned that they would not work satisfactorily36. It seems to me that there was an obligation on the builder to make all necessary enquiries about this novel system before fitting. That was not done. The choice would then have been left with the owners as to whether they would bear the cost of installing 32 mm water service to the flush valve systems or choose to install a standard cistern system. [112] It is perhaps arguable that all due enquiries should have been made about these systems at time of contract, though given the plethora of product names there was nothing to indicate this was other than a common cistern system commonly used in Australia. There was perhaps an obligation on the owners to bring that to the attention of the builder from outset. The matter does not have to be decided given my conclusions following. [113] The owners were obliged under the contract to provide toilet systems, regardless of type. They had to bear that cost. They did when they purchased the flush valve toilets. Once installed they could not be returned to the supplier. [114] Accordingly though the builder paid for the replacement in-wall cistern systems eventually used, in proceeding to install the flush valve systems though aware they might not perform appropriately, the builder failed to act with reasonable care and skill. Because of that failure the owners lost the opportunity to return the flush valve systems for refund and suffered loss of amenity in the change of systems. In my opinion it is not appropriate to now allow the builder the cost of supplying the in-wall cistern systems without taking into account the loss borne by the owners with the costs of the flush systems thrown away. Accordingly I make no allowance in respect of that item of claim, either as to the cost of the actual systems or the plumbing and tiling costs on install. [115] In end result, reducing the final moneys owed to the builder under the contract of $13,070 by the costs of rectification of $6,469, the owners owe the builder $6,601. [116] By clause 11.9 of the general conditions of contract if the owner fails to pay the builder as required under the contract the builder is entitled to interest at the rate specified in item 19 of the schedule. The rate specified in item 19 of the schedule says 20% per annum. Pursuant to the terms of the general conditions37 the owner was not entitled to hold any retentions for defects and omissions, and the moneys due the builder was to be paid 5 days after the builder submitted a claim38. The certificate of practical completion is dated 35 Ex 6 Document B entitled Response to Experts Report item 13 and Ex 6 Addendum to Specification “Items Supplied by Owner”. 36 Ex 6. 37 Clause 11.8. 38 Schedule item 20 (progress claims including practical completion stage). -- 16 of 17 -- 17 14 January 2011 and the builder claims interest as and from January 2011. I calculate interest is due at 20% on the sum of $6,601 from 1 February, 2011, which on my calculation totals $3,135.92. [117] The builder seeks costs. There are no costs awarded in minor debt claims, or only very limited costs, and though this matter was heard together with the owners building claim in my opinion it remains a minor debt matter though given a building list number. The order in the minor civil dispute matter was simply that it be transferred to the building list and heard together with the owners domestic building dispute matter BDL048-12. The owners also seek costs. They have been largely unsuccessful in their claim however given they sought at time of hearing $120,315. In the circumstances I believe it is only appropriate that each party bear their own costs. -- 17 of 17 --