Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Patel v Southern Cross Joinery Pty Limited [2022] NSWCATCD 162 Hearing dates: 18 March 2022 Date of orders: 01 September 2022 Decision date: 01 September 2022 Jurisdiction: Consumer and Commercial Division Before: M Tyson, Senior Member Decision: The respondent is to pay the applicant $378.95 immediately and the application is otherwise dismissed. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) - defective work Legislation Cited: Home Building Act 1989 (NSW), ss. 18B, 18E(1)(b), 48K(1), 48MA and 48O(1)(1). Cases Cited: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 Ermogenous v Greek Orthodox Community of SA Inc (2002) 187 ALR 92 Category: Principal judgment Parties: Nandini Patel (Applicant) Southern Cross Joinery Pty Limited (Respondent) Representation: Applicant (self-represented) S Baalbaki, Managing Director (Respondent) File Number(s): HB 21/34817 Publication restriction: Nil REASONS FOR DECISION 1. This proceeding involves a dispute arising out of a contract to install and deliver cabinetry for a kitchen at a residential property at Dawes Point, New South Wales. The applicant seeks an order that the respondent pay her $27,000.00. The application was heard in the Tribunal on 18 March 2022 by way of an audio-visual linked hearing. Each of the parties was self-represented. The applicant's claim 1. The applicant's claim is that the respondent, in supplying and installing the cabinetry for the kitchen, did residential building work for her which was not in accordance with the plans and specifications set out in the contract, in breach of a statutory warranty implied into the contract by the Home Building Act 1989 (NSW) s. 18B(1)(a). With respect to kitchen cabinet drawers beside the refrigerator in the applicant's kitchen, the applicant's claim is that the respondent did residential building work for her which was not reasonably fit for a specified purpose, in breach of a statutory warranty implied into the contract by the Home Building Act 1989 (NSW) s. 18B(1)(f)("the Act"). 2. There are a number of matters in particular about which the applicant complained, and they are dealt with below in these reasons. 3. Based on the way the parties presented their case at the hearing, the principal issues in the proceedings were: (a) what version of plans and specifications for the kitchen had been agreed between the parties, (b) had the respondent delivered a kitchen according to the specifications and finishes identified in the contract, and (c) if the respondent had not done so, what is the quantum of the loss allegedly suffered by the applicant. The evidence 1. For her written evidence, the applicant relied upon a bundle of documents filed in the Tribunal on 31 January 2022, which was admitted without objection. The bundle was marked as Exhibit A. The first part of material included in the bundle was 131 pages in length and consisted of a chronology of events, a building report prepared by CSI Building Consultants dated 19 January 2022 ("the Building Report"), a Scott schedule, a two-page document entitled amended claim and submissions; and then the second part of the bundle was a further 93 pages in length, made-up of a "contract" and correspondence between the applicant and the respondent. 2. Mr. O'Donnell was the author of the Building Report. Having regard to his professional qualifications in carpentry and joinery and his practical experience in the building trade (see section 7 in the Building Report and his resume at section 15 in the Building Report) and his degree (see paragraph 5 of Mr. O'Donnell's statement), the Tribunal finds that he has sufficient expertise to offer the opinions which he has made in the Building Report. Mr. O'Donnell attended at the applicant's property where the kitchen was installed on 17 January 2022 and inspected the works performed by the respondent. He has annexed the Tribunal's 'experts' code of conduct' to the Building Report (see annexure 6 to the report) and has stated in the Building Report that he has prepared the Building Report in accordance with the duties of an expert giving expert opinion evidence to the Tribunal. Where Mr. O'Donnell has identified work, on his instructions, not performed in accordance with the contract between the applicant and the respondent, he has provided cost estimates to rectify each issue. In his estimates, he has estimated the number of hours to complete the work and has applied hourly rates taken from Rawlinson's Construction Cost Guide 2022 and in the Scott Schedule which he prepared as an annexure to the Building report, he gave the page number from said publication which he relied upon for the hourly labour rate. 3. The applicant also tendered a bundle of documents filed in the Tribunal in August 2021 and 83 pages in length (Exhibit B). Most of this bundle contained material relating to whether or not an agreement between the applicant and the respondent, or near agreement, after September 2020, and also involving NSW Fair Trading, was being performed. There are email transmissions relevant to this, invoices for lighting hardware obtained as part of this agreement, and also text messages where the applicant and the respondent are trying to make arrangements to carry out the agreement and where the applicant, amongst other things, is calling for the respondent to implement parts of the agreement where there has been delay and the respondent is explaining, amongst other things, why there has been delay in implementing the agreement. 4. The next piece of written evidence tendered in the applicant's case was an email transmission dated 7 November 2018 sent from N Jain of Jainco Services to the respondent, addressed to "Steve". The Tribunal marked it as Exhibit C. The email included the following: "Attached please find signed documents for kitchen at [property identifying details] for your further necessary action. Please note that contract is to be in the name of Jainco Services P/L. Contact N Patel [mobile telephone number]. Also please note that under bench Oven is to be on right and cabinet on left. The bulk head panel in front of AC unit is to be soft touch with slot for air register. Can you email corrected doc (oven and cabinet locations) in Jainco Services P/L name …" 1. The applicant also relied upon a document filed in the Tribunal on 14 March 2022. The respondent objected to the tender of this document. Mr. Baalbaki, the managing director of the respondent, suggested that he was concerned that the service of the material only days before the hearing could cause the hearing to be delayed. The Tribunal decided to admit the document and it became Exhibit D in the proceedings. The document was eight pages in length and was framed as a "response to submissions of the respondent". It included some pages of submissions and then a reply to the respondent's Scott Schedule. The Tribunal did not feel that the material raised any new factual issue which the respondent could not address and the material was in the nature of submissions. The Tribunal also explored with the respondent whether it sought an adjournment but the respondent indicated that it's position was that it wanted the matter to be decided without further delay. 2. The respondent relied for its written evidence upon a bundle of documents filed in the Tribunal on 15 February 2022, which was admitted without objection. The bundle was 196 pages in length and was marked as Exhibit 1. Included within the bundle there is the "original contract", an internal debrief form, email transmission correspondence, some evidence about potential rectification orders under the auspices of the New South Wales Fair Trading Department, documents relating to items within the relevant kitchen including the refrigerator, lights, air-conditioning grilles, hinges and strip lights, a chronology of events and a reply to the Scott schedule. There was no independent expert report, addressing the issues raised by the applicant's case, within the respondent's evidence tendered at the hearing. In Exhibit D, the applicant consistently made the point, in her reply to the respondent's response to the Scott Schedule, that the respondent had not provided an expert report. 3. The applicant was affirmed and gave oral evidence at the hearing. Mr. Steve Baalbaki, the managing director of the respondent, was affirmed and gave oral evidence at the hearing. Both parties were given an opportunity to cross-examine. Mr. Baalbaki cross-examined the applicant. There was no cross-examination of the expert witness, retained by the applicant, who provided the Building Report. The factual background: the applicant's case 1. The factual background according to the applicant's evidence, is as follows: 2. On 10 May 2018 the respondent held contractor licence number 81864C, or alternatively, Mr. Ingle whom the respondent retained to install the kitchen the subject of the proceedings, held that licence. On 10 May 2018, the applicant entered into a contract with the respondent, trading as Sydney Kitchens, for the installation and delivery of a kitchen to the applicant's home at an address in Dawes Point, New South Wales. The contract was in writing. Much of the contract is in typed script but there are also some changes which have been written into the contract by hand. The front page of the contract identifies the specifications and finishes for the kitchen and the brand name of certain items to be installed, including some of the drawers inside the kitchen cabinets. There are five pages of plans of different parts of the kitchen attached to the contract. The applicant has signed each of the five pages on 10 May 2018. The designer, Adam Thorn, is identified on each of the drawings. There are some handwritten annotations on the drawings. The front page of the contract also includes two mobile telephone numbers and an email address. 3. The contract and the plans relied upon by the applicant are numbered C1 – C12, where they are annexed in the Building Report. 4. The 'customer name' is identified on the front page of the contract as "Nandini Patel – Jainco Services Pty Ltd." Ms. Patel has signed the front page of the contract and a Mr. Adam Thorn signed the contract for the respondent. On the second page of the contract, 'customer 1' is identified as Nandini Patel and 'customer 2' is identified as Jainco Services Pty Ltd. Ms. Patel has signed her name beside 'customer 1'. Numbered pages in the contract C4 – C8 identify the client as 'Narendra Jain.' 5. At numbered page C9, there is a document called "Formal Instrument of Agreement" which has been signed by Ms. Patel as 'customer 1' and Mr. Thorn. Some of the text in this document is as follows: "Unless otherwise agreed in writing by the parties this Contract is comprised of the following parts: (a) the Contract Particulars at the beginning of this Contract, (b) this Formal Instrument of Agreement, (c) …, (d) the Terms of Sale, (e) the Consumer Building Guide, and (f) the Plans." 1. At numbered page C12 there is a document headed 'Sydney Kitchen Debrief Checklist 2016' which identifies, amongst other things, aspects of the materials to be supplied for the kitchen, finishes, styles and some measurements. 2. The applicant and the respondent conducted the case on the basis that the respondent's contract was with the applicant. Taken as a whole, the evidence does suggest that the respondent's contract was with the applicant, and not either Jainco Services Pty Ltd or any other natural person. 3. The contract price was $38,304.00, including GST of $3,482.00. A deposit of $3,830.00 was payable. There was then a payment of $11,491.00 to be made upon the check-measure, a further payment of $22,483.00 on delivery and $500.00 at completion. 4. The applicant paid the deposit on 10 May 2018. 5. On 7 November 2018, there was a variation of the contract agreed between the applicant and the respondent involving the supply and installation of an air-conditioning panel in the sum of $2,880.00. 6. On 13 November 2018, according to the applicant's chronology, the respondent carried out a check of the measurements for the kitchen that was to be installed for the applicant ("the check measure"). 7. The applicant said that she went to the respondent's office and Mr. Baalbaki provided her with documents and told her "It's exactly as the contract plans signed, there's no change. You have to sign it to get your kitchen" ("the Representation"). The applicant says that based on that, she signed the documents provided to her. 8. Within the applicant's bundle of documents filed 30 January 2022, there is a set of documents, at pp. 89 – 102 in that bundle, and commencing with a document headed "Check Measure Job No. SKSB1090 … check measurer: Steve", which have been signed by Ms. Patel at the foot of each page. These are the documents which the Tribunal understands were signed by the applicant in the respondent's office on 13 November 2018. 9. On 1 December 2018, full payment was made by the applicant to the respondent of, by that date, $43,780.00. 10. However, the kitchen installation only commenced in March 2019. The applicant advised the respondent during the installation of the kitchen of various claims by her that the kitchen being installed did not match the contract specifications. The applicant said that the installer told her to speak to Mr. Baalbaki. 11. The applicant says that she contacted, or sought to contact, the respondent (through Mr. Baalbaki) by text message, email transmission and telephone call over a number of months and received no response. The applicant also says that subsequently she made numerous attempts to contact Mr. Ingle, who was the person who did the installation. 12. The applicant complained about five "major issues" which were as follows: 1. the respondent had not made provision for LED strip lighting in certain of the kitchen cabinets; 2. there were two narrow front draw "pull outs" that were in the wrong location; 3. the air-conditioning panel that had been installed was not "soft touch"; 4. the door hinges that had been installed were not 'soft close" "blumotion" integrated hinges; 5. the pantry did not include four 'anti finger print' stainless steel drawers. 1. The applicant also complained about other issues, which included that certain drawer inserts were not fully supplied, all knobs were not installed, the kickboard was not finished between the walls and the cabinetry on all corners, glass inserts were not sandblasted opaque glass and the hinges for cabinet doors were not all soft closing 'blumotion' integrated hinges. 2. The evidence before the Tribunal appears to suggest that the respondent has installed all of the cabinetry that it was obliged to install through its contract with the applicant, albeit not including, on the applicant's case the overhead cabinetry that was to be recessed so as to facilitate LED lighting. (The Building Report states at para 9.3 that the "kitchen and cabinet installation has reached about 100% of the full installation except that …[certain defects then alleged in the Building Report].") 3. On 10 March 2020, the applicant says she advised the respondent that if he made no response to her, she would be contacting the NSW Department of Fair Trading ("Fair Trading"). The applicant says there was no response and she contacted Fair Trading on 20 June 2020. On 16 September 2020, Mr. Baalbaki and Mr. Ingle inspected the kitchen. On 23 October 2020, a meeting was held between the applicant, Mr. Baalbaki and a representative of Fair Trading. The evidence suggests that an agreement was made, or appeared to have been made, between the applicant and the respondent to address the applicant's claims. As part of that agreement, the respondent refunded the applicant $1500.00 in November 2020 but other aspects of the compromise agreement were not fulfilled and correspondence between the parties continued into 2021. 4. In the application, the applicant seeks $27,000.00. The applicant's evidence falls short of that figure. In the Building Report, the applicant's expert says that $17,993.00 is owed to the applicant by the respondent for rectification works. 5. One of the main thrusts of Mr. Baalbaki's cross-examination of the applicant was in regards to the November 2018 email transmissions (as to which see below in the section of these reasons reporting on the respondent's evidence) which sent amended plans and specifications to the applicant. Mr. Baalbaki put to the applicant that she had agreed to the documents sent to her, including the amendments to the original kitchen plans and specifications, some of which were identified in green text in the attached documents. The applicant denied that she agreed, doing so on the basis that the email transmissions were sent from her husband to the respondent and were not from her. Mr. Baalbaki put to the applicant that it was her signature on the foot of the pages which were sent back to the respondent in early November 2018. The applicant agreed that it was her signature on the relevant documents. The applicant said that she had been tricked into signing the documents because of the Representation. The applicant distanced herself from email transmissions which came from her husband. The respondent directly challenged her evidence on that point, putting to the applicant that "she was lying." The applicant denied that she was lying. The factual background: the respondent's case 1. The respondent's disagreement with the applicant's version of the factual background to this dispute as set out above, relates to what was the contract signed by the applicant. In reporting on the material aspects of the respondent's evidence, it is useful to identify key differences on the respondent's account of the factual background, when compared to the applicant's evidence. 2. The respondent denied making the Representation at the respondent's office in November 2018. 3. The respondent also drew attention to what it said were important email transmissions sent between the respondent and the applicant on 5, 6, 7 and 8 November 2018. 4. There is an email transmission sent on 5 November 2018 at 4.20 p.m., sent to Mr and Mrs Patel, attaching documents. There is another email transmission sent to them on 5 November 2018 at 6.54 p.m., attaching again the same documents sent earlier that day, but now with a trade schedule attached. 5. On 6 November 2018 at 12:27, Mr. Baalbaki sent an email transmission to the email address identified in the contract. The subject of the email transmission was "Jain Ammended [sic] Sign Off". The email is addressed to "Mr and Mrs Patel". The text of the email is "Please see the agreed amendments in green and the variation attached." The email contained six attachments in PDF form, as follows: Jain Benchtop Order 40MM; Jain Details, Jain Manufacture Plans, Jain splashback order, Jain trade schedule and Jain variation to contract. The variation to contract was for $2,880.00 for "matching bulkheads." 6. The 'Jain Details' attachment does have some items in green text. One of the items in the attached documents which was changed from the documents emailed on 5 November 2018, is that the soft close drawers are now identified, in green text, as "legrabox silky white" while previously they were described as "legrabox orion grey." 7. Also on 6 November 2018, at 1.19 p.m., Mr. Baalbaki addressed an email to Mr and Mrs Patel, once again, at the email address identified in the contract, and said "Please see the amended attachments". The subject of the email was "SIGN OFF 3". The attached documents contain some additional items which are now in green text. The Tribunal notes that the attached documents identify downlights within cabinets inside the planned kitchen. The Tribunal also notes that the attached documents identify the glass cabinets on either side of the oven as containing clear glass. 8. Attached to the email transmission are pages which correspond to the documents in the applicant's evidence that were signed by Mrs Patel (at pages 89 – 102 in Exhibit A, that commence with the document headed "Check Measure Job No. SKSB1090 … check measurer: Steve"), but these documents in the respondent's evidence, contain text that is in different colours. For example, in addition to the text that is in black, some of the text is in green and some of the text is in red. Of course, the documents attached to the email transmission in the applicant's evidence are also not signed by Mrs. Patel. 9. On 6 November 2018, at 2.40 p.m., an email response was made from the email address identified in the contract: "Hi STEVE, Thanks. Under cooktop bench can you please move oven to the right and cabinet to the left. Rest is OK Regards Narendra Jain – Jainco Services." 1. Narendra Jain is the husband of the applicant. 2. A telephone number for a landline and a mobile number then appear after that text. The mobile telephone number coincides with one of the two mobile telephone numbers on the May 2018 contract. 3. The respondent said it then received an email transmission, on 7 November 2018, at 10:57. It came from a different email address to the one appearing in the contract and was copied to two other email addresses, both of which also are different to the one appearing in the contract. The subject of the email transmission is the street address of the property where the kitchen was to be installed. The email contains attachments. The attachments now feature signatures at the foot of each page. Some of the signatures are clearly "N Patel" while other signatures are clearly of the surname "Patel" but the initial is sometimes obscure. This email transmission is from "N Jain" of Jainco Services. The text includes: "Hi Steve, Attached please find signed docs for kitchen at [address] for your further necessary action. Please note that the contract is to be in the name of Jainco Services Pty Ltd Contact N Patel [mobile number]. Also please note that under bench Oven is to be on right and cabinet on left. The bulk head panel in front of AC unit is to be soft touch with slot for air register. Can you email corrected document (oven and cabinet locations) in Jainco Services P/L name. I will forward the locations to Electrician and Plumber for wiring etc. You can contact me on [mobile number] if you need any more info. Thanks." 1. The second mobile telephone number in the text quoted immediately above differs from the mobile number appearing earlier on in this quoted text. Both of these mobile telephone numbers correspond to the two numbers in the contract. 2. That email transmission appears identical in its text to Exhibit C, but there is a small difference in the times appearing in the emails (Exhibit C was sent at 10.58 a.m. and the email in the respondent's evidence was sent at 10.57 a.m.) and there are also differences in how the recipient, and persons to whom the email were copied, are described. Exhibit C does not have a subject for the email, unlike the email in the respondent's evidence, and the email in the respondent's evidence shows that a document in PDF format is attached to the email, while the email in the applicant's evidence does not expressly show that there is an attachment to it. 3. Also included within the signed documents is the 'variation to contract' dated 6 November 2018, in the amount of $2,880.00, which contains details of Narendra Jain's credit card and the card holder's signature, followed by a signature which appears to be Mrs. Patel's signature made on 7 November 2018. 4. On 8 November 2018 at 3:10, Narendra Jain sent another email transmission to Mr. Baalbaki. This was from an email address not identified in the contract. Again, there were attachments to the email transmission, which appear to have been signed by "N Patel." Some of the information provided in the 6 November 2018 at 12:27 is again provided, including the statement "Please note that under bench oven is to be on RIGHT and cabinet on LEFT HAND SIDE." 5. On 9 November 2018, Mr. Baalbaki has emailed an order to the factory for the Jain job. 6. The respondent's evidence also includes other correspondence and material in relation to the attempt at resolving this dispute that involved NSW Fair Trading, in addition to the applicant and the respondent. The parties appear to have reached, or been close to reaching an agreement on 23 October 2020. The agreement, or near agreement, appears to have been partially carried out, for example by the respondent giving a partial refund back to the applicant. Evidence before the Tribunal suggests that parts of the agreement, or near agreement, were disputed. In particular, the respondent's case was that as part of this agreement, the respondent was going to install downlights instead of LED strip lighting within the relevant kitchen cabinets and accordingly, holes were drilled in the cabinets to support the installation of down lights. The applicant stated during cross-examination that she did not agree to any holes being drilled in the cabinets and didn't understand why downlights were to be purchased until only afterwards. (It is because the applicant disputed whether she had agreed to the respondent installing downlights, that I have used the phrase or 'near agreement' in these reasons. Neither party sought any orders or relief in regards to the agreement, or near-agreement, which was reached on 23 October 2020, or with respect to the performance of that agreement). 7. Other evidence suggests that other aspects of the agreement were not carried out all and further, that there was delay in carrying out the agreement. By way of example, there is evidence in the form of an email transmission dated 26 March 2021 (p. 132 in Exhibit 1), suggesting that the respondent was organising for downlights and hardware relating to the downlights to be delivered to the applicant at around that time. There is evidence in the form of an email transmission dated 17 August 2021 (p. 140 in Exhibit 1), suggesting that the respondent was organising for one of the inserts to be delivered to the applicant at around that time. 8. The applicant again approached Fair Trading in July 2021. Then, in August 2021, the applicant lodged her claim in the Tribunal. Consideration Jurisdiction 1. The respondent did not make any submission that the Tribunal did not have jurisdiction to determine the proceedings. I am satisfied that the Tribunal does have jurisdiction to determine the proceedings. The applicant is an owner who has brought a "building claim" (a claim for the payment of a specified sum of money that arises from a supply of building goods or services under a contract, where the goods or services were supplied for or in connection with the carrying out of residential building work: s. 48A(1) of the Act) against a builder, when read with the definitions of building services and supply in s. 48A and the definition of "residential building work" and "dwelling" in Schedule 1 c. 2(1)(b) and (c) and s. 3(1) of the Act. The amount claimed is within the jurisdictional limit of the Tribunal: s. 48K(1) of the Act. 2. The application was lodged on 13 August 2021. The respondent was still doing some work for the applicant in August 2021, with email transmission evidence dated 17 August 2021 (p. 140 in Exhibit 1), before the Tribunal, suggesting that the respondent was organising for one of the inserts to be delivered to the applicant at around that time. There is other email transmission evidence dated 26 March 2021 (p. 132 in Exhibit 1), suggesting that the respondent was organising for downlights and hardware relating to the downlights to be delivered to the applicant at around that time. Therefore, the application has been commenced within the relevant two-year period: s. 18E(1)(b) of the Act. What version of the plans and specifications was agreed? 1. The next principal issue for the Tribunal to determine is what version of plans for the kitchen had been agreed between the parties. The applicant and the respondent's versions of the contract were at odds. It appeared to be common ground between the parties that the 10 May 2018 document signed by the parties was the initial version of the contract. Variations to the contract were permitted so long as they were agreed in writing by the parties (see the 'Formal Instrument of Agreement' referred to above). It also appears to have been common ground between the parties that there was an express variation in the contract with regards to the air-conditioning panel work, on 7 November 2018. 2. 57 In approaching this issue, the Tribunal must apply the principle that it is the applicant who bears the onus of proof. The applicant bears the onus of proving her case on the balance of probabilities. Secondly, the Tribunal is obliged to apply an objective test when ascertaining contractual intention (Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 at [46]) and intention is not to be found in the uncommunicated subjective motives or intentions of the parties (Ermogenous v Greek Orthodox Community of SA Inc (2002) 187 ALR 92 at 100 per Gaudron, McHugh, Hayne and Callinan JJ). 3. The Tribunal is not satisfied that Mr. Baalbaki, on behalf of the respondent, on 13 November 2018, at the respondent's office, made the Representation. Nor is the Tribunal satisfied that the applicant signed documents on 13 November 2018 on the basis of the Representation. 4. The Tribunal's reasoning behind those findings are as follows: on 7 November 2018 at 10.57 and on 8 November 2018 at 3.10 a.m., signed versions of the penultimate, and the final, set of plans and specifications relied upon by the respondent, were sent back to the respondent with the applicant's signature via email transmission. That is, the applicant indicated her agreement not in the context of, nor following any meeting at the respondent's offices on 13 November 2018. The applicant's signature on the final set of plans was sent to the respondent on 8 November 2018, responding to email communications from the respondent. 5. The applicant made the submission, as the Tribunal understood it, that she was not bound by, nor a party to email communications that came from her husband or at least, from an email address that was not in the May 2018 contract. These two email transmissions (on 7 and 8 November 2018 referred to in the preceding paragraph) were from an email address which did not appear in the 10 May 2018 document. However, they responded to email transmissions which had been sent by the respondent on 6 November 2018 at 1.19 p.m. and which was sent to the email address that was mentioned in the 10 May 2018 contract. 6. The respondent sent on 6 November 2018 the final version of the kitchen plans and specifications to an email address which was mentioned in the May 2018 contract. But in any event, there was nothing in the 10 May 2018 contract which provided that any variations to the contract agreed by the applicant had to come back to the respondent via a specific mode of acceptance, or even the specific email address mentioned in the 10 May 2018 contract. 7. Looking at the matter objectively, the Tribunal finds that the applicant accepted the plans and specifications which the respondent emailed on 6 November 2018. By applying her signature to documents which had been sent to the applicant on 6 November 2018 by email transmission, the applicant indicated that she accepted the changes to the plans and specifications that had been emailed through to her. Also included within the documents sent back to the respondent, and as mentioned above, was the variation to contract, dated 6 November 2018, in the sum of $2880.00, which the applicant's husband has signed on 7 November 2018 as the holder of the relevant credit card and then, immediately under his signature, the applicant has signed on 7 November 2018 as "the client." That circumstance suggests to the Tribunal that the applicant was involved in considering the documents sent by the respondent on 6 November 2018, was involved in the response which went back to the respondent, and was interacting with her husband in relation to the documents which the respondent had emailed on 6 November 2018. 8. There was nothing in the documents that might warn the respondent that the applicant's husband was acting without her permission, even if one assumes that he was. To the contrary, the formal variation for the air-conditioning panel work was signed by the applicant on 7 November 2018. The email transmission on 8 November 2018 sent at 3.10 a.m. specifically stated that the "client contact" was the applicant and then stated what appears to be her mobile telephone number, being one of two mobile telephone numbers mentioned specifically in the May 2018 contract. 9. At the hearing the applicant did not adduce any evidence from her husband that the email transmissions which had been sent back to the respondent on 7 and 8 November 2018 were sent without the applicant's authorisation or permission. If it is the case that the applicant's husband had responded to the respondent on 7 and 8 November 2018 by email transmission without the applicant's permission, why is there nothing in the evidence about the applicant discovering only later that the oven and the cabinet beside it were directed to be moved without the applicant's authority (see Exhibit 1 at p. 98), which direction appears (see Exhibit A at p. 63) to have been realised? 10. The Tribunal was not persuaded by or satisfied by the applicant's evidence that the Representation was made. In the email transmissions sent by the respondent from 5 November 2018, Mr. Baalbaki has used different coloured texts, and used express language about what was now being proposed for the plans and specifications. He appears to be clearly indicating changes to the applicant from what was in the May 2018 contract, such that the Tribunal finds it implausible that he would then make a misleading statement to the applicant about the plans and the specifications in November 2018. 11. The applicant did not point to anything which corroborated her account and the Tribunal does not find that the applicant has discharged her onus of proof on this part of the case. 12. The factual background set out above in these reasons under the sub-heading 'the factual background: the applicant's case' is correct except that it is not correct: (i) insofar as it asserts that the Representation was made and was relied on by the applicant (see paragraph 23 above) and (ii) it also does not contain all of the November 2018 email transmissions (together with the attachments to them) which the Tribunal finds were sent from the respondent, as described above in these reasons when recounting the material differences between the respondent's account of the factual background and the applicant's account. Items claimed to require rectification 1. The Tribunal will now detail findings on the specific aspects of the cabinetry supplied by the respondent which were the subject of the evidence. 2. Kitchen cabinets overhead LED strip lighting and glazing. The applicant draws attention to the May 2018 contractual documents which includes: "Cabinetry provision for LED strip lighting. Lights and electrical by client." The Building Report says that the cabinets supplied by the respondent did not have recesses within them for the LED strip lighting to be installed. The Building Report notes the holes drilled in the relevant cabinets which would need repair were LED strip lighting to be installed. The Building Report also notes that the glazing on the relevant cabinets is not opaque glass as shown in the original May 2018 contract. 3. The Tribunal finds that the applicant has not established its case in relation to this item. The kitchen plans sent to the applicant by the respondent on 5 November 2018 and 6 November 2018 show that the respondent is proposing that downlights will replace the LED strip lights in the relevant cabinets. These plans also show that the glass on the relevant cabinets is clear and not opaque. For the reasons identified above, the applicant has indicated her agreement to the changes by signing the respondent's plans and specifications with the downlights. The signed plans and specifications were sent back to the respondent on 7 and 8 November 2018 and did not contain provision for LED strip lighting and opaque glass. 4. If the Tribunal's conclusion above, about what was the final version of the kitchen cabinetry plans and specifications agreed by the parties is incorrect, then in that outcome, the Tribunal would find that $6,222.00 is the amount which the applicant needs to bring the work done by the respondent with respect to the cabinetry overhead lighting and glazing, into conformity with the contract specifications. That figure is the amount which the applicant's expert puts forward for this item, that is, $7302.00, but minus $1,080.00 for the lights themselves. The applicant's expert has expertise to give an opinion on this matter and his reasoning is set out in his report in a manner which the Tribunal finds persuasive, except for the $1,080.00 for the lights. The applicant's expert was not cross-examined by the respondent. The respondent, in a document in the respondent's evidence called "Response to Scott Schedule" disputes the applicant's calculation but the Tribunal does not find the points made by the respondent convincing. The respondent puts forward, for example, different costing of items, and hours of work, but this does not go beyond the level of assertion and does not come from an independent expert. On the lights, on the Tribunal's reading of the contract relied upon by Mr. O'Donnell, "lights and electrical" are identified on the first page of the contract as an item to be supplied by the applicant, so the Tribunal finds that that part of the applicant's claim on this item is not established. 5. The cabinet internal slide-out or pull-out drawers. The applicant draws attention to the March 2018 "contract" which includes: "7 … stainless steel legrabox drawers." The Building Report says that "silky white" drawers have been installed instead. 6. The Tribunal finds that the applicant has not established its case in relation to this item. Mr. Baalbaki says in writing in his response to the applicant's Scott Schedule that he discussed "orion grey" legrabox drawers with the applicant and those type of drawers are included in the plans emailed on 5 November 2018 to the applicant. Then, on 6 November 2018 and 7 November 2018, the kitchen cabinet plans and specifications emailed show that the respondent is proposing that legrabox "silky white" drawers will be used, rather than "stainless steel" legrabox drawers. For the reasons identified above, the applicant has indicated her agreement to the changes by signing the respondent's plans and specifications with the downlights. The signed plans and specifications were sent back to the respondent on 7 and 8 November 2018. 7. If the Tribunal's conclusion above, about what was the final version of the kitchen cabinetry plans and specifications agreed by the parties is incorrect, then in that outcome, the Tribunal would find that $2,887.00 is the amount which the applicant needs to bring the work done by the respondent with respect to the cabinet internal slide-out or pullout drawers, into conformity with the contract specifications. That figure is the amount which the applicant's expert puts forward for this item. The applicant's expert has expertise to give an opinion on this matter and his reasoning is set out in his report in a manner which the Tribunal finds persuasive. He was not cross-examined by the respondent. The respondent, in a document in the respondent's evidence called "Response to Scott Schedule" disputes the applicant's calculation but the Tribunal does not find the points made by the respondent convincing. The respondent puts forward, for example, different costing of items, and hours of work, but this does not go beyond the level of assertion and does not come from an independent expert. The respondent also suggests that the $1500.00 which it refunded the applicant as part of the attempt by NSW Fair Trading to mediate the dispute between the applicant and the respondent should be deducted from this item. The Tribunal is not persuaded that there is any evidence to support the submission that the $1500.00 was referrable to this item. 8. There are two 'narrow front' pull-out drawers, said to be used to house spices and to be located near the oven, which have been moved from their location in the March 2018 plans, to beside the refrigerator. The Building Report says that the two drawers cannot properly be used in their changed location as they are inaccessible and interfered with by the refrigerator. The Building Report also states that these drawers are not moisture resistant and do not comply with the applicable Australian Standard. 9. It appears that in the email transmission dated 6 November 2018 sent at 1.19 p.m., there is a list of appliances to be part of the applicant's new kitchen and the refrigerator specified there is "F & P RS90AU1 with water feed integrated." In his response to the Scott Schedule, the applicant claims that the applicant changed the refrigerator to a Samsung SRF671BFH2, which is a non-integrated refrigerator, and which meant that the drawers had to move from near the oven to the other side of the refrigerator and further that narrow pull-out drawers had to have the faces on the internal timber cut-down, to try to allow better access to the pull-outs. The respondent says in its response to the applicant's Scott Schedule that the applicant and the man who did the cutting for the respondent agreed to this. 10. The Tribunal accepts that on 6 November 2018, there is a list of appliances to be part of the applicant's new kitchen and the refrigerator specified there is "F & P RS90AU1 with water feed integrated." There is no evidence before the Tribunal about what the applicant and the man who did the cutting had agreed. Comments in a response to a Scott Schedule are not a substitute for evidence. 11. In the Building Report, Mr. O'Donnell says (at 2.11) "The contractor makes claim the owners have change [sic] the fridge type and it has stop [sic] them putting the pullout drawers to the right side. The fridge ordered and delivered and installed is exactly the model and size that was provided in the check measure (Manufacture Plan) stage." However, that does not appear to be the case. The Building Report acknowledges that a Samsung refrigerator was in fact installed in the applicant's kitchen (see for example at p. 24 in the Building Report). The Building Report suggests that the F&P and the Samsung refrigerators have the same model number and specifications (see at p. 24 in the Building Report and at p. 23 of 29 in the inspection report provided as part of the Building Report). The respondent submits that the Samsung refrigerator has different dimensions to the F&P refrigerator but the document relied upon by the respondent to demonstrate the Samsung refrigerator's dimensions (see p. 141 in Exhibit 1) is of limited probative value. What is the document and where did it come from and where is the evidence that the dimensions on this document apply to the refrigerator installed in the applicant's kitchen? 12. In conclusion on this item, the evidence before the Tribunal presented by both the applicant and the respondent is unsatisfactory. It appears that a different refrigerator has been installed in the applicant's kitchen than the one identified in the plans on 6 November 2018 and further, the new one installed is not an integrated refrigerator. The Building Report author does not appreciate these facts and the Tribunal cannot place confidence in the report with respect to this item. Doing the best one can with the material, the Tribunal infers that the applicant obtained a different refrigerator and as such there was a valid reason for the respondent to move the pullout drawers to a side of the refrigerator, which in turn has meant that the pullout drawers are not as effective as the applicant had originally intended in providing ready access to the drawers. The Tribunal finds that the applicant, who has the onus of proving her case, has failed to prove this aspect of her case. 13. In the event that the Tribunal is wrong in coming to that finding, it is hard to work out from the Building Report what would be the cost to rectify these two pullouts as the calculation in the Building Report (see items 4 and 2 in the applicant's Scott Schedule) features a wider range of items than just the two pullout drawers beside the refrigerator. As to the internal faces of the timber within these drawers which have been cut, the respondent disputes the claim from the applicant's expert that the timber installed is not moisture resistant, making the point too that the applicant's expert has not identified any tests of the timber which he undertook. The respondent makes the assertion about the timber installed relevant to this matter in its response to the Scott Schedule. This is unpersuasive. It doesn't rise above mere assertion and there are no invoices or other material which demonstrates what timber was bought and no evidence of what timber was installed. It is not from an independent source that has taken into account the code of conduct relating to expert evidence. Mr. O'Donnell has not mentioned any tests done of the timber but on the other hand he has inspected the timbers and has the extensive experience set out in the Building Report. 14. The issue is finely balanced but doing the best it can with the evidence on this issue, the Tribunal finds that the Building Report should be preferred on this issue, on the basis of Mr. O'Donnell's experience, the fact that he has inspected the timber and he is an independent expert witness. However, there is nothing in evidence breaking down how and what it would cost to rectify this item in the Building Report. The respondent says that $180.00 would be the relevant amount Tribunal should allow to paint the faces of the timber inside these drawers. The Tribunal would order that amount be paid to the applicant, if the conclusion recorded above in relation to this item were found to be wrong. 15. The air-conditioning panel on top of one of the cabinets which should be "soft touch" has not been installed by the respondent, so the applicant claims. The Building Report (see at p. 20 of 29 in the Report) identifies that a "soft touch" open and close hinge has not been installed. The respondent says that the contractual plans and specifications agreed to by the applicant in November 2018 did not feature "soft touch' hinges. 16. The Tribunal agrees that the plans and specifications signed by the applicant and sent back to the respondent in November 2018 do not explicitly identify that the hinge should be "soft touch." However, the covering email transmission which first forwarded a signed set of plans and specifications, being the email transmission sent on 7 November 2018 at 10.57 a.m., clearly states "The bulk head panel in front of AC unit is to be soft touch with slot for air register." The Tribunal finds, on the basis of that email transmission, that it was agreed by the parties that a variation to the original May 2018 contract was that the bulk head panel in front of the air-conditioning unit was to be "soft-touch." Therefore the failure to supply and install such a hinge means that the respondent has not performed residential building work in accordance with the plans and specifications set out in the contract, in breach of one of the statutory warranties implied by the Act (s. 18B(1)(a)). 17. The respondent also, in his response to the Scott Schedule (see at p. 191 in Exhibit 1) makes an assertion about a conversations with "Mrs. Jain", whom the Tribunal assumes is a reference to the applicant, about bulkhead installation. Assertions of factual matters in a response to a Scott Schedule, which are not supported by any witness statement or primary evidentiary material are not material which the Tribunal finds persuasive. 18. The Building Report and the respondent agreed that the cost of rectifying the item is $144.00. The Tribunal finds that that amount should be paid by the respondent to the applicant with respect to this item. 19. Inserts, to house cutlery and kitchen utensils, for use within certain drawers within the kitchen cabinetry, are incorrect and do not properly fit the drawers. The Building Report includes photographic evidence showing that the drawer inserts supplied do not fit the space within the drawers (see p. 21 of 29 in the Building Report). The respondent says that the original May 2018 contract featured standard cutlery dividers, rather than "ambia line" dividers, which the Tribunal infers from the material before it would have fitted the space had the correct "ambia line" dividers been ordered. The respondent also suggests when responding to the Scott Schedule that following the intervention of NSW Fair Trading, that it did procure and install the "ambia line" dividers so that there was no longer a gap and relies on p. 140 in Exhibit 1 to substantiate the claim. 20. The Tribunal does not find it relevant that the May 2018 contract referred only to standard cutlery dividers. The plans and specifications which the Tribunal has found, see above, were signed by the applicant and then emailed back to the respondent on 7 November 2018, clearly show that the applicant has selected "ambia line" for the "utensil tray drawers." The Tribunal has had regard to p. 140 in Exhibit 1 and does not find that that email transmission demonstrates that the inserts have in fact been supplied. At the hearing, the applicant said that one of the inserts was still missing. The Tribunal accepts her evidence in this regard. 21. In the Building Report, Mr. O'Donnell has allowed for three inserts to be fitted at $114.95 each and then he has allowed for one hour's work for a carpenter to install the inserts, so that there is an allowance of $90.00 for the labour to install all three inserts. The Tribunal finds that one of the inserts has still not been installed by the respondent, such that the work performed by the respondent has not been performed in accordance with the plans and specifications. The Tribunal does not have any evidence of how long a carpenter will take to install one of the inserts, as opposed to three. Doing the best it can with the material before it, the Tribunal will divide by a third the 1 hour allowed by Mr. O'Donnell. Therefore, $144.95 is payable by the respondent to the applicant in respect of this item. 22. Two brass knobs supplied by the respondent in respect of kitchen cabinets provided by the applicant are not correct and are missing base flanges, with the Building Report also suggesting that the screws supplied were defective and probably were over tightened. The respondent appears to recognise that there was a problem in relation to this item when the knobs were initially supplied and ordered new knobs as part of the attempt under the resolution which NSW Fair Trading sought to realise but the respondent was not able to cause the knobs to be fitted owing to Covid-19 (see in Exhibit p. 160 and 140). The Tribunal finds, on the basis of the Building Report that the two knobs supplied by the respondent were defective, such that they were not in accordance with the plans and specifications, in breach of statutory warranty implied by the Act. The Building Report has allowed $90.00 of labour from a carpenter for one hour to rectify this item. The Tribunal finds on the basis of that evidence that $90.00 is payable by the respondent to the applicant in respect of this item. 23. Cabinet door hinges. The applicant draws attention to "soft close doors", which has been circled in the May 2018 contract, plans and specifications. The Building Report states that 41 soft close hinges were not installed by the respondent that should have been installed. The respondent's position appears to be that on 5 November 2018, soft close doors were added to the applicant's order for her kitchen and the respondent then ordered soft lose hinges on 9 November 2018 and installed them. The respondent accepts that two soft door hinges have failed and he has ordered replacements. 24. This issue is finely balanced. The Building Report only contains a photograph showing the hinge in one of the cabinets installed by the respondent and there is nothing explicit in the Building Report stating that all cabinets were checked for their hinges. The respondent provides photographs (see p. 156 in Exhibit 1) which are asserted to show what are in fact "soft close" hinges, and which are of the same type, claimed to the contrary in the Building Report (see p. 23 in the Building Report) not to be a soft-close hinge. Neither the author of the Building Report nor the respondent has explained by evidence to the Tribunal in any convincing way the basis for their assertion about whether or not there were soft-close hinges installed by the respondent. It does seem plain that the respondent ordered 'soft close' hinges for the applicant's kitchen (see p. 104 in Exhibit 1) and that circumstance leads me to infer, doing the best I can on the evidence, that it is likely that the respondent did then also install "soft close" hinges for the applicant's kitchen. The Tribunal's finding on this item is that the applicant has failed to persuade the Tribunal on the balance of probabilities that the respondent did not supply the required hinges. 25. Kickboards in the kitchen, between the walls and cabinets on all corners, which the applicant says, based on the Building Report, are "unfinished." The respondent denies this item, suggesting that the photographs relied upon in the Building Report show skirting board not kickboard under the kitchen cabinets. The respondent states that skirting board is the responsibility of a carpenter rather than a kitchen maker like the respondent. 26. A difficulty in deciding this issue is that the Tribunal cannot tell from the four photographs in the Building Report whether or not the areas shown in the photographs, where there are gaps, are all within the kitchen or instead occur just outside the borders between the kitchen cabinetry and the existing walls in the house. The kickboards themselves seem to have been completed in a finished state and it is the skirting boards which are either of insufficient height or coverage. The Tribunal's finding on this item is that the applicant has failed to persuade the Tribunal on the balance of probabilities that the respondent was responsible for the skirting boards and ensuring that their edges fitted flush with the kitchen installed by the respondent. 27. If the Tribunal is wrong in that conclusion, and the skirting boards are the responsibility of the respondent, then the Tribunal would find that $180.00 should be allowed to the applicant for the rectification of this item, on the basis of the Building Report's findings in relation to this item. 28. Margin – the Building Report identifies an allowance for an additional amount of 25%, on top of the total for individual items outlined in the Building Report, for "margin/overheads, supervision co-ordination" on top of the individual amounts for each of the items the Report has claimed were supplied in breach of the Act's statutory warranty. The respondent says in responding to the margin claim "To be tallied by the learned Member based on what is required based on the orders." 29. The Building Report did not address whether the margin suggested therein should be payable in circumstances where only three, relatively small and discrete issues (the 'air-conditioning panel', the 'insert' and the 'two knobs') requiring rectification have been found by the Tribunal to have been established by the applicant. 30. In circumstances where only three, relatively small and discrete issues requiring rectification have been found by the Tribunal to have been established by the applicant, the Tribunal is not satisfied that a margin for 'overheads, supervision or co-ordination' is properly payable based on the Tribunal's findings above. Doing the best I can with the evidence presented, it does not seem that there is any reasonable basis for the relevantly-skilled tradesperson or persons rectifying the three items, to incur costs of 'overheads, supervision or co-ordination' to do the rectification work. The Tribunal is not persuaded that the applicant has discharged her onus of proof on this item. 31. If the Tribunal is wrong in coming to that conclusion in respect of the claim for the margin, the Tribunal finds that a margin of 25% is appropriate. That is the amount identified in the Building Report and there was no cross-examination of Mr. O'Donnell, nor any counter-veiling evidence in the respondent's material critical of that margin. Rectification by the responsible party? 1. As this is a case where the Tribunal has found that some rectification work by the builder is merited, the Tribunal is obliged to have regard to the "preferred outcome" provided for in s. 48MA of the Act. 2. During the hearing, the respondent indicated that it was open to a work order being made against it, in the event that the need for rectification work was established. In this case, however, the Tribunal does not find that an order for the respondent itself, as the responsible party, to carry out the rectification work, is merited. The evidence shows that there has already been an attempt, after the applicant made her complaint to NSW Fair Trading, to rectify some of the items about which the applicant complained. The evidence shows that that attempt did not succeed in resolving the applicant's complaints and that there were still outstanding matters which the respondent either did not, or could not, rectify: see for example the applicant's identification of 'still incomplete items' in her 31 May 2021 email transmission (Exhibit 1 at p. 138). During cross-examination, the applicant said that she didn't want the respondent's cabinet installer or site supervisor, back at the site of the kitchen installation, on the grounds that he was, the applicant said, "abusive." The evidence also tends to show that it was a relatively slow or time-consuming process for the applicant and the respondent to engage with each other about the work the subject of these proceedings. The items which the Tribunal has found above require rectification, are discrete, separate matters and it seems to me that ordering the respondent to pay money by way of damages for breach of warranty (see s. 48O(1)(a) of the Act) will be time and cost-effective and save the applicant and the respondent from having to re-engage with each other in relation to an order under s. 48MA of the Act. 3. The Tribunal finds therefore that the respondent is obliged to pay the applicant $378.95, being the total of $144.00, $144.95 and $90, immediately. The applicant also sought an order that the respondent pay the costs of the applicant's expert report, which is an amount of $2,830.00. The Tribunal is not persuaded that it should make that order. Much of the Building Report was premised on a matter that the applicant failed to prove (see "Where a misleading second Plan (Manufacture Plans) were issued/submitted after installation." : Building Report p. 3) and only a relatively small proportion of the applicant's case has been established. ********** 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 Amendments 20 September 2023 - Formatting amendments. 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: 20 September 2023