Campbell v Chronis [2022] NSWCATCD 158

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Campbell v Chronis [2022] NSWCATCD 158 Hearing dates: 28 March 2022 Date of orders: 01 September 2022 Decision date: 01 September 2022 Jurisdiction: Consumer and Commercial Division Before: D Goldstein, Senior Member Decision: 1. Andreas Chronis and Anna Chronis must carry out the work referred to in paragraph 56 of the Reasons in accordance with the conditions of that paragraph. 2. Each party must pay their and its own costs of the proceedings. 3. Scott Campbell and Clair McCauley have leave to renew these proceedings if order 1 is not complied with within the period specified by the Tribunal. Catchwords: BUILDING CONSTRUCTION Legislation Cited: Home Building Act 1989 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Thornton v Desire Constructions Pty Ltd [2020] NSWCATAP 116 Category: Principal judgment Parties: Scott Campbell, Clair McCauley (Applicants) Andreas Chronis, Anna Chronis (Respondents) Representation: Applicants (self-represented) Strand Lawyers (Respondents) File Number(s): HB 21/35197 Publication restriction: Nil

REASONS FOR DECISION 1. These proceedings were commenced on 17 August 2021. In this application the applicants claimed $32,788.22 for defective work. 2. In these reasons I will refer to the applicants as the owners and to the respondents as the builder. 3. The hearing was held on Monday 28 March 2022. The owners were self-represented. The builder was legally represented. There is no dispute between the parties that the Tribunal has the necessary jurisdiction under the Home Building Act 1989 to hear and determine these proceedings. 4. The evidence was contained in a trial bundle of documents that was marked exhibit A. 5. There were three issues to be determined at the hearing: 1. The determination of the items of defective work in dispute. 2. Whether there should be a work order pursuant to section 48MA of the Home Building Act 1989; and 3. Costs. 1. The parties entered into an HIA March 2018 Contract on 9 November 2019. Clause 39 contained the statutory warranties referred to in s18B(1) of the Home Building Act. I will refer to relevant parts of the contract if it becomes necessary to do so. 2. The owners relied on expert reports prepared by Mr Corbishley. The reports were dated 9 August and 21 September 2021. Mr Corbishley prepared a scott schedule which referred to defective items of work and estimated the necessary rectification costs as $32,788.22. In his supplementary report dated 21 September 2021 Mr Corbishley reconsidered his position as regards item 6 of his Scott schedule which he reformulated and increased the estimated cost of rectification from $4,300.58 to $20,987.00. The total claimed in Mr Corbishley's updated Scott schedule was $54,814.29 which is at page 310 of exhibit A. 3. The builder served and relied upon an expert report from Mr Drexler which was said to be dated 30 November 30 November 2021. It was filed in the Tribunal on 16 February 2022 and served on the owners' former solicitor around that time. Mr Drexler considered Mr Corbishley's evidence in his two reports referred to and expressed the opinion that the cost of rectifying defects in the works was $1,135.00. 4. In accordance with the Tribunal's orders the parties' experts met and produced a joint expert report ('JER') which commences at page 11 of exhibit A which was a bundle of documents which contained the evidence in the proceedings. I was informed that the JER was prepared on 24 January 2022. There were 20 items referred to in the JER. The majority of them were agreed by the experts. In some cases the defect was agreed but the rectification cost was not. 5. I would also add that there were no submissions made that either of Mr Corbishley or Mr Dexler lacked the necessary expertise to be giving expert evidence in the Tribunal. I accept both of them as being able to give expert evidence in the Tribunal. 6. The experts have agreed items 3, 4, 9, 10, 14, 15, 16, 17 and 19. The cost of rectifying these items was agreed at $1,650.54. The experts' meeting also resulted in the owners' expert not pressing items 5, 6, 8 and 20. 7. I will deal with the disputed items in the JER, namely items 1, 2, 7, 11, 12 and 18. The amount claimed in connection with the disputed items is $6,048.00. 8. The agreement reached by the experts has considerably reduced the scope of the dispute between the parties as well as the amount in issue which I calculate to be $6,768.00 excluding margin and GST. 9. Given that the Tribunal is now dealing with a relatively minor dispute between the parties I propose now to consider s48MA of the Home Building Act. I have taken this approach in order to simplify the decision writing process. To be precise if the builder is to be allowed to return to carry out the necessary rectification work, I will not consider the rectification methodology if at all possible because the builder will be responsible for the outcome and the rectification methodology will be at its risk. I find that this approach is acceptable on this basis and also because of the relatively modest amount of the owners' expert's assessment of the rectification cost.