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Dwyer v Kelly (Home Building) [2007] NSWCTTT 442 (1 August 2007)

CONSUMER, TRADER AND TENANCY TRIBUNAL

Home Building Division

APPLICATION NO:

HB 07/19956 (formerly numbered 07/20688)

APPLICANT:

Pauline Therese Dwyer

RESPONDENT:

Geoffrey Kelly

APPEARANCES:

Applicant in person Respondent in person

HEARING:

22 June 2007

APPLICATION:

The applicant sought an order that the respondent pay her a sum between $35,000.00 and $45,000.00.

ORDER

The respondent is to fix, repair and make good, on or before 30 October

2007, in a proper and workmanlike manner, the following items:

1. Complete the internal painting, including eliminating the numerous defects found by Inspector Meagher.

2. The wall and floor tiling in the ensuite so as to eliminate the sharp and chipped tiling which creates a hazard to bare feet, as well as

those tiles behind the tap in the laundry which have fallen out.

3. Complete the external painting to eliminate the defects found by

Inspector Meagher, including the paintwork to the verandah beams and clean all spills and marks caused during painting.

4. Remove all waste timber and debris still left on site, as well as

making good the following damage caused while carrying out

previous rectification work including: 1. Sanding mark on right hand side gutter,

2. Small amount of paint splatter on window of dining room, 3. Small paint marks on carpet in bedrooms 3 and 4, and 4. Small paint mark on render outside window of bedroom 2.

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REASONS FOR DECISION

1. The applicant, Pauline Therese Dwyer, a homeowner, and the respondent, Geoffrey Kelly, a builder, signed a home building contract on 14 December

2004. The contract stipulated that the builder was to erect a single storey kit house, manufactured by New England Country Homes Pty Limited, at

“Kurrawalla”, “…”, Molong for the sum of $364,844.00. 2. Work commenced shortly thereafter. While the dwelling was being

constructed, several changes were made which eventually increased both the time for completion and the cost of the work. During December 2005,

the respondent moved into the dwelling. There is some dispute about whether there was any date for “actual completion” and, if so, what that date was.

3. At some stage, presumably between December 2005 and July 2006, the

local council issued an Occupation Certificate for the dwelling. In a letter dated 28 July 2006, the General Manager of the Cabonne Council, GLP Fleming, noted that the Council had acted in good faith in issuing that

Certificate but that an inspection on 5 June 2006 by the Council’s Manager Building and Environment revealed there were some deficiencies within

the building. 4. In a letter dated 31 August 2006, Mr Stephen Sadlier, the Managing

Director of New England Country Homes Pty Limited, set out that he visited the dwelling early in June 2006 and that it was his opinion that the

dwelling was soundly constructed with no visible evidence of structural weakness. He claimed all the external timbers were properly installed and securely fastened in accordance with good building practice. However, he

did find that some of the sub-trades had not exercised care in their workmanship with the result that the overall finish of the dwelling was

disappointing. 5. Shortly after occupying the premises the applicant engaged A. Rendell

and Associates, construction consultants, to inspect the dwelling and report on any defects considered to be the responsibility of the builder to

make good. Alec J. Rendell wrote a 22 page report on 10 April 2006, and attached thereto various annexures. Section 7 of his report, being pages 10 – 22, itemises the defects found by Mr. Rendell. These were brought to

Mr Kelly’s attention so that he could make good these flaws.

6. Apparently some of these imperfections were deal with by Mr Kelly but his failure throughout 2006 to address all the problems set out in the Rendell report led to other parties becoming involved.

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7. One of those was Building Inspector Thomas Meagher of the NSW Office of Fair Trading who wrote to the applicant on 10 February 2006

concerning her complaint about the work performed by the respondent. A Complaint Inspection Report, dated 4 September 2006, was issued by Mr

Meagher. Attached to it is a list of 26 items considered by the Inspector to be items of defective work. The respondent attended the premises and performed some repair work. There was a site meeting between the

applicant and Inspector Meagher on 28 November 2006, and on 5 December 2006 he issued a Rectification Order that 14 items of defective

work be rectified. 8. Apparently the builder attended the premises and further repairs were

carried out. Another site inspection was held on 11 January 2007 and in a document headed “Building Inspection Report – Addendum”, dated 9

February 2007, the Inspector listed 4 of the 14 items of the Rectification Order which had not been completed. The Inspector also noted that the builder, in carrying out the rectification work, had caused damage in 4

specific and identified instances.

9. The applicant has had the advantage of an inspection by a building inspector of the Office of Fair Trading. Mr Meagher’s Building Inspection Report – Addendum of 9 February 2007 sets out four items of work listed

in his Rectification Order that have not been completed and that in carrying out the rectification work which he had ordered to be done, the

respondent had caused 4 instances of damage. Section “A” of the applicant’s written submission set out the financial claim against the respondent amounting to a claim between $35,793.87 and $45,788.87.

The range of the claim depends on which quotation from various contractors is used to make the calculation.

10. The Building Inspector from the Office of Fair Trading has set out the 4

items of work still to be completed as well as four instances of damage

which have to be made good. These are: 1. Internal painting not completed in a good and workmanlike manner.

2. Wall and floor tiling not completed in a good and workmanlike manner. 3. External painting not completed in a good and workmanlike manner. 4. Waste timber left on site

while the damage caused in carrying out rectification work is listed as: 1, Sanding mark on right hand side gutter

2. Small amount of paint splatter on window of dining room 3. Small paint marks on carpet in bedrooms 3 and 4 4. Small paint mark on render outside window of bedroom 2.

11. The builder should be given the opportunity to make good these

outstanding items. Otherwise, he is on notice that should he fail to complete the work ordered by the Tribunal, then the applicant can seek to renew her application and convert the Tribunal’s orders for rectification to

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a money order so that she may have the defects repaired by the tradesmen of her choice at the builder’s cost.

12. Therefore, the orders set out on the first page of these reasons are made.

Bruce Howe

Member Consumer Trader & Tenancy Tribunal

1 August 2007