Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Green v Modern Roof Restorations (NSW) Pty Ltd [2021] NSWCATCD 101 Hearing dates: 18 August 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Consumer and Commercial Division Before: S Sutherland, General Member Decision: 1. On or before 17 December 2021 the respondent is to rectify in a proper and workmanlike manner the defects as set out in the reports of Mr Pieter Kastelen of Jim's Building Inspections dated 19 November 2020 and Mr Ian Clark of Paintinspection dated 24 January 2021 this includes the priming and the re-coating of the roof, and the removal of paint and debris and rectification of the gutters and the removal of paint from the solar panels. Catchwords: BUILDING AND CONSTRUCTION – Defective and incomplete works – Whether rectification is the prefererred outcome Legislation Cited: Home Building Act 1989 (NSW) Cases Cited: Leung v Alexakis [2018] NSWCATAP 11 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Texts Cited: Nil Category: Principal judgment Parties: Debbie Green (Applicant) Modern Roof Restorations (NSW) Pty Ltd (Respondent) Representation: Applicant (Self represented) J Fentiman (Respondent) File Number(s): HB 21/16042 Publication restriction: Nil REASONS FOR DECISION 1. This is a claim a home building claim by the applicant that the work was not completed with due care and skill pursuant to Section 18B of the Home Building Act 1989 (NSW). The applicant seeks the amount of $26,821.96 in compensation for damaged and inadequate gutters and to replace the damaged and irreparable roof, removal and return of the solar panels to accommodate a new roof. Evidence of the applicant 1. The applicant contracted with the respondent on 31 August 2020. The work commenced on 8 September 2020 and was to take a maximum of 2 days, however, the work was not completed satisfactorily by a sub-contractor of the respondent, Scott Fagerlund, the issues with the gutters were being addressed when work commenced on the roof restoration. 2. The applicant claim to the Tribunal are that the gutters are inadequate, all need to be replaced by another contractor, the gutters are not functional as they have been over-sprayed with roof restoration paint. 3. On 13 October 2020 work commenced on the roof, including replacement of broken tiles, and repointing cleaning, and preparation prior to painting, however, the sub-contractor delayed the completion due to personal reasons. On 23 October 2020 the applicant was advised by Chris Rowe, that the work was completed and that the final payment was due. The applicant felt pressure my Mr Rowe to pay the final instalment however, she did not believe that all the coats of paint would be dry by this time. On 29 October 2020 after her return from Grafton she went to an elevated area of her backyard and could see that not all the work had been completed. She could see many broken tiles. She contacted the respondent received a scathing response from Mr Rowe, the applicant declined to pay the remaining payment as she did not believe that the work had been completed. It was suggested to pay the final instalment and use the warranty to rectify the issues. 4. Mr Rowe did suggest to obtain an independent report and the applicant proceeded with this. Report of Golden Point Roofing 1. An inspection was completed by Golden Point Roofing in a report dated 9 November 2020. The report outlines over spraying on walls, defective pointing, paint over solar panels, broken tiles, leaks and cracks in the tiles with no weep holes to get out. The reporter claims that the work was completed unsatisfactory. Report of Mr Pieter Kastelen of Jim's Building Inspections 1. Mr Kastelan inspected the work on 19 November 2020. On inspection of the roof he noted a number of broken and damaged tiles present across the roof exterior and estimated that about 100 tiles required replacing. There was evidence of roof leaks with water staining evident to building elements in the roof. The damage roof is a major defect. The roof capping's were also poorly finished and he suspected that the capping's were not removed and re-bedded prior to the flexi pointing being applied. No weep holes were installed to the ridge to capping to allow for water to escape and there were holes and cracks to the ridge mortar bedding as a result of rough installation and this will allow the storm water build up beneath the ridge tiling. Mr Kastelan concludes that this was one of the worst roof restorations that he had seen as his time as a building inspector. 2. The overall workmanship was very poor and the work was not completed to an acceptable level or in accordance with Australian standards. He suspects that the level of finish and poor preparation has in fact ruined the roof exterior. Without confirmation of appropriate cleaning and sealing prior to the application of two coats of colour, I would not recommend simply re-painting as no guarantee can be given for future deterioration and peeling of poorly prepped surfaces. I would recommend the removal of the solar panels and hot water units and the complete replacement of the roof tiles and guttering due to excessive overspray in all areas. Report of by Ian Clark of Paintinspection 1. The report dated 24 January 2021 concludes that in the experience of the report writer, "the re-coating of existing coated cement roofs provides little in long term improvement. This is more so when the surface preparation is below standard. That said Acryloc … manufacture a specialty primer for this purpose." Mr Clark then provides his opinion on how the priming of the roof should be carried out and states, however the recoating is unlikely to provide a long term satisfactory solution… It may prove a more economical and better long term solution to have the roof re-tiled. He then states, Removal of the new coatings to bare concrete roof tiles is likely the best course of action. The new coating system can be applied to a correctly applied substrate. This will also allow for the tile repairs, repointing and capping to be repaired to the customer's satisfaction. Evidence of the respondent 1. The respondent concedes that the work was not be completed to an acceptable standard, full replacement of the tiles and gutter replacement. The costs of the repair works are substantially less than the claimed value and there is a warranty in place that covers the incomplete and defective work. 2. The respondent has on multiple occasions since 2 November 2020 sought to perform rectification to the work, however, the applicant has refused them access to carry out rectification works. The respondent claims that the defects can be fixed in a proper and workmanlike manner. Report of Peter Lamey – Lord of the Roof 1. The report by Mr Lamey dated 4 June 2021 where he carried out a site inspection on 4 June 2021, he concludes that the ridge caps and gables need to be removed due to excessive pointing mix on tiles all ridge, hip and gable tiles replaced and all ridge caps and gable tiles to be rebidded ridge caps may be need to be replaced as well. Where overspray is on the wall above 2. The respondent also relies on the report of Gary Brown, National Sales Manager, Acryloc Building Products, the manufacturer of the coatings used on the roof and was requested to comment on the applicant's report by "Paintinspection." The manufacturer disputes the claim that the only option is to retile the roof, and that this is not the only option, nor the most cost effective. The recoating of previous painted and coated cement tiled roofs is common practice and it is not only impractical, but unnecessary for previous coatings to be removed. 3. Mr Brown claims if the coating is not adhering to the substrate, that high pressure cleaning will remove the poorly bonded product. If the coating is sufficiently bonded, and pressure cleaning does not remove it, the surface is deemed sufficiently stable for recoating using the correct procedure. 4. The respondent claims that they have been denied the opportunity to make good any defects and that a proposal that a Fair Trading NSW inspector attend the site was rejected by the applicant. The respondent claims that they should be able to rectify the roof in accordance with Section 48MA of the Home Building Act, 1989. Consideration 1. The building contract between the parties on 31 August 2020. In the terms and conditions of the contract, clause 4 states, Our obligations, "We will supply the Products and perform the work as specified in the details. We will comply with the relevant legislation, codes, standards and specifications that the products and the work are required by to comply with under law." 2. The respondent concedes liability and that the work was defective and incomplete. The primary issue is whether the Tribunal should make an order for rectification or for damages. 3. The applicant seeks damages of $26,821.96. I have listened to the oral testimony of the applicant as she went through the list of defects and the reports provided in Exhibit A1. In her evidence, there appeared to be a break down in any trust between the respondent and the applicant due to the actions Mr Rowe, an employee of the respondent, placing pressure on the applicant and his response to the claim of defective work by the respondent. Mr Rowe was not called to give evidence before the Tribunal. The applicant does not agree to the roof being rectified and it appears to the Tribunal that this is because she has lost trust in the ability of the respondent to complete the rectification and the subsequent reports of Mr Kastelan, that the roof required replacing, and the report by Mr Clark that the recoating would not provide a long term solution. The applicant had concerns that the coating would come off after a period of time. 4. I have heard oral testimony from the respondent. They dispute that the property requires a new roof, and apologised for the conduct for Mr Rowe. The respondent told the Tribunal that the work could be adequately rectified if they were provided access to the applicant's property to complete the rectification. There is also the report of the manufacturer that supports the claim by the respondent that a replacement roof is not the only option, and that re-coating is common practice, the manufacturer in their report provide a procedure for the re-coating of the roof. Mr Clark, in Exhibit A1, in his report also comments on how the roof could be prepared for re-coating using the primer of the manufacturer. Section 48MA of the Home Building Act, 1989 provides the following: 48MA Rectification of defective work is preferred outcome in proceedings A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome. 1. The preferred outcome in claims of defective is rectification. In Leung v Alexakis [2018] NSWCATAP 11. In that case, the Appeal Panel decided: There was a discretion to be exercised under s 48O(1) which permits the Tribunal to make an order for compensation, an order in the nature of a work order or some other order of the type set out therein: at [139]. Section 48MA operated in the manner of akin to a presumption, such that "unless the facts of a particular case make it inappropriate to order rectification of the defective work by the responsible party, an order should be made in terms that give effect to the principle": 1. In Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23, "The term "preferred" is not defined. The HB Act and Regulations do not specify circumstances in which the preferred outcome is not to be adopted. However, guidance as to the meaning of "preferred" and the circumstances that would justify an order for a different outcome is found in the second reading speech where the Minister for Fair Trading makes clear that the purpose of the amendment was to: (1) prevent a homeowner from unreasonably refusing a builder access to a building site to rectify defective work; (2) permit a builder to return to carry out necessary rectification work if they are willing; and (3) support the timely and cost-effective resolution of disputes. That is, in deciding what order should be made, a court or tribunal may consider whether there is a reasonable basis for any objection raised by the homeowner to the builder being permitted to rectify the defective work, the terms of any order, whether the builder is willing to return and whether such an order would support a timely and cost effective resolution of the dispute. 1. The evidence of the experts is conflicting on whether the roof requires replacement. The report of Mr Clark does provide the option of the re-coating of the roof; however, he is not confident of it being a long term option. On the otherhand, I have the reports of the manufacturer and Mr Lamey that the rectification can be carried out to an acceptable standard. The respondent states in his evidence that the contract comes with a 7 year building warranty and there is no question that the roof was not done properly. The respondent concedes the following in his oral evidence, that there is, "No question that the roof was not done properly. It is a poor job." The concern of the applicant is that if the work is not completed in a proper and workmanlike manner that she does not wish to go through this process again. 2. In my view, the applicant's lack of trust, her history with Mr Rowe, the reports Mr Kastelan and Mr Clark when weighed against the reports of the manufacturer and Mr Lamey are not in my view, on balance, sufficient to exercise my discretion to award damages. The respondent during the hearing apologised for the history of the work and was sincere in rectifying the defects. He told the Tribunal that Mr Rowe would have no further part in any rectification and that senior management would oversee rectification. For these reasons I do not intend to exercise my discretion to award damages to replace the roof and gutters and that the preferred outcome of rectification is the appropriate order in this claim in accordance with Section 48MA of the Home Building Act, 1989. 3. I make the following orders: On or before 17 December 2021 the respondent is to rectify in a proper and workmanlike manner the defects as set out in the reports of Mr Pieter Kastelen of Jim's Building Inspections dated 19 November 2020 and Mr Ian Clark of Paintinspection dated 24 January 2021 this includes the priming and the re-coating of the roof, and the removal of paint and debris and rectification of the gutters and the removal of paint from the solar panels. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2021