District Court New South Wales Medium Neutral Citation: Robust Builders Pty Ltd v Barai & Anor (No.6) [2023] NSWDC 376 Hearing dates: 22-25, 28-31 August 2023; 1, 5 - 7 September 2023 Date of orders: 15 September 2023 Decision date: 15 September 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 363 Catchwords: CONTRACTS – building and engineering contracts - – builders' claim for unpaid invoices – question of date the contract was entered – whether collateral contract – whether owners liable for unpaid invoices – whether claimed variations proven - owners' cross-claim for defective and incomplete works – significance of issue of occupancy certificate and other compliance reports to proof of defective or incomplete works – significance of rectification order Legislation Cited: Civil Procedure Act 2005 (NSW), ss 96,100 Evidence Act 1995 (NSW), s 69 Home Building Act 1989 (NSW), ss 7, 10, 11, 18B, 18E, 18BA, 18G, 48E, 48F, 48K, 48L, 51 Uniform Civil Procedure Rules 2005 (NSW), rr 6.20, 14.14, 42.1 Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 Concut Pty Ltd v Worrell (2000) 75 ALJR 312 Crown Melbourne Ltd v Cosmpolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133 L'Estrange v Graucob Ltd (1934) 2 KB 394 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560: Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Texts Cited: N Seddon and R Bigwood, Cheshire & Fifoot The Law of Contract (11th Australian ed, LexisNexis 2017) Category: Principal judgment Parties: Robust Builders Pty Ltd (plaintiff/cross-defendant) Mr P Barai (defendant/cross-claimant 1) Mrs F Mahjabeen (defendant/cross-claimant 2) Representation: Mr D Lambley (solicitor) for the defendants/cross-claimant Mr R Mehndiratta (as director of and for the plaintiff/cross-defendant) File Number(s): 2018/00259451 REASONS FOR JUDGMENT Introduction The parties' cases Issues The evidence relied upon by the parties issues associated with the builder's claim The date the contract was entered The Builder's evidence The Owners' evidence Mr Barai Ms Mahjabeen Expert evidence Submissions The Builder's submissions The Owners' submissions The builders' submissions in reply Consideration Credit Mr Mehndiratta Mr Barai Ms Mahjabeen Forensic consequences of credit findings Analysis When the contract was entered into & entry into collateral agreement Was there a cap on claims for variations? Summary The claim for unpaid invoices The Builder's evidence The invoices the subject of the claim Other documents The Owners' evidence Mr Barai's evidence Mr Barai's position in relation to the invoices he says were received Mr Barai's position with respect to the invoices he says he did not receive Features of Mr Barai's cross-examination Ms Mahjabeen Submissions The Builder's submissions The owners' submissions Consideration Claim in restitution for works performed The claim in detinue for items not returned to the Builder The Builder's evidence The Owners' evidence Submissions Consideration ISSUES ASSOCIATED WITH THE OWNERS' CLAIM The owners' lay evidence Mr Barai's evidence Ms Mahjabeen's evidence The Builder's evidence Other documents Mr O'Donnell's evidence Qualifications and expertise Mr O'Donnell's opinion as to defective works Mr Mehndiratta's challenges to Mr O'Donnell's opinion about rectification works and costs General points Submissions The owners' submissions The builder's submissions Consideration Statutory provisions General assessment of Mr O'Donnell and his evidence Evaluating Mr Mehndiratta's submissions relating to defects and incomplete works Quantification of rectification costs Costs of the proceeding Orders REASONS FOR JUDGMENT Introduction The parties' cases 1. In this proceeding, which commenced (on 23 August 2018) almost five years ago to the first day of its hearing, the plaintiff, a building company called Robust Builders Pty Ltd ('the Builder') alleges that on 23 December 2016, it entered into a written contract with the defendants (Mr Barai and Ms Mahjabeen, who I will refer to collectively as 'the Owners' unless indicated otherwise) relating to their residential home at property at Seven Hills (the Property). The works were for the demolition of the existing structure and the construction of a two storey dwelling. The works were performed throughout 2017 and 2018 and an occupancy certificate was issued on 3 July 2018. From late July 2018, the Builder alleges that it was locked out of the property and that it was unable to reclaim various items of property. The precise circumstances as to how the contract came to an end are unclear (there was no evidence of any written notice of termination, as required by the contract), although it appears to be common ground that the Builder ceased performing work in July 2018 and that the Owners moved back into the property in August 2018. 2. The Builder alleges that the contract price was $510,000 (incl of GST) for which it claims that it received payment of $487,800. It contends that it made some small refunds to the defendants ($2,310 and 4,500). The Builder sues the Owners for the monies representing what its director, Mr Ravi Mehndiratta, characterised in his opening address (T 27) as unpaid invoices for approved variations. The amended pleading sets out a schedule of these invoices. The total claimed is $220,624.25. 3. Part of the Builder's claim also concerns the value of equipment and other tools which the Builder contends was left on the property and to which it has been improperly deprived access to after being locked out in August 2018. The Builder quantified that particular claim as being in the sum of $92,000. 4. In total, the Builder claims the aggregate sum of $312,624.25 which means that the claim was capable of being brought in the NSW Civil and Administrative Tribunal.1 It also claims interest, calculated under s 100 of the Civil Procedure Act 2005 (NSW). The Builder sues on actions in contract and, alternatively, on a quantum meruit. 5. In his opening address, Mr Mehndiratta indicated the Builder's case that there was a single written contract, dated 23 December 2016, which referred to a contract price of $510,000. He further explained that, in substance, the Builder's claim for unpaid invoices was in respect to variations that had not been agreed to in September 2016 but were subsequently recognised and agreed to by the Owners. The owners' Bank had paid the progress payments. As I understood Mr Mehndiratta to submit, the variations were recognised either in the December 2016 version of the contract and/or by way of a bundle of correspondence after December 2016. 6. By their Further Amended Defence (28 August 2020), the Owners deny that any written contract was entered into on 23 December 2016. They say that they signed the contract on 24 September 2016. They accept that the contract price was $510,000, but this price included, as a component, the sum of $160,000 representing the variations agreed between the parties in November 2016. They say that there were no additional variations. 7. In his Opening Address, Mr Lambley, the Owners' solicitor who appeared for them at the hearing, indicated that save for the written contract of September 2016, Mr Barai, in particular, disputed inserting his signature in many of the documents that Mr Mehndiratta had attached to his affidavit, or evidentiary material (Exhibits A and B), to sustain the Builder's version of the contract contended for. 8. In his opening, when I asked what consequence(s) would follow depending upon the Court's finding of when the contract was entered, either in September or in December 2016, Mr Lambley, indicated that in the former instance, his clients' position was that all payments were made; but in the latter instance, Mr Mehndiratta would need to prove, by reference to a contract price, what amount was owing and he, Mr Lambley, did not presently understand what the claim for quantum upon that contingency was. 9. The owners also contend in their Defence that the works were not completed and were rather, defective. The 'incomplete' feature of the works was partly indicated by a rectification order made by an inspector on 31 August 2018. A litany of defects were identified in paragraph 8(d) of the Defence. The Owners deny that any valuable equipment owned or belonging to the Builder had been left on the property. 10. One of the owners, the first defendant and first cross-claimant, Pankaj Barai, filed a Cross-Claim (on 21 August 2019, which was amended on 10 February 2021). But at the hearing, Ms Mahjabeen was added as a second cross-claimant [1] . Mr Barai alleged a series of defects (corresponding to the itemised description of defects in the Defence) and claimed damages for the works required to rectify and complete the works. The cross-claim identified breaches of the contractual term of the contract requiring the Builder to exercise care and skill (clause 3, a general condition to the contract which relevantly required the Builder's compliance with statutory warranties under the Home Building Act 1989 (NSW) and also compliance with relevant Australian Standards); breach of an implied term that the works would be of merchantable quantity and another implied term that the work would be fit for purpose. The owners also claim interest under the Civil Procedure Act 2005 (NSW). 11. In addition to relying upon incomplete and defective works to sustain a cross-claim, the Owners pleaded in their Defence that the same claim operated as a defence of set-off to reduce or extinguish the Builder's claim. Issues 1. Neither party supplied the Court with the documents that they are required to supply by the usual orders for hearing that a Court will make, such as chronologies or statements of issues. 2. It appears from the evidence and what I raised with the legal representative for the owners and Mr Mehndiratta, before they delivered their closing addresses, that the issues in dispute are as follows. 3. First, on the Builder's claim: 1. when was the contract which the Builder seeks to enforce entered into: on 24 September 2016, 20 November 2016, or 23 December 2016? 2. whether the Builder was precluded by the contract (whenever it was entered) from adjusting the contract price on the basis of additional variations once the construction works had commenced? 3. if cl 13 was not varied, whether the variations claimed by the Builder went beyond those which the parties had agreed to prior to the commencement of the works? 4. if the answer to question (c) is that they were, whether: 1. the invoice was issued by the Builder; and 2. the invoice was unpaid by the owners 1. what, if any of the Builder's equipment was left on the property and what was its value. 1. On the Cross-claim: 1. what, if any, parts of the works were incomplete or defective after the Builder ceased work in July or August 2018? 2. the quantum of reasonable costs for the completion or rectification (as applicable) of the works The evidence relied upon by the parties 1. Case-management directions throughout the proceeding plainly indicated that evidence was to be by way of affidavit. 2. At the hearing Mr Mehndiratta read his affidavit dated 30 March 2020. 3. He also relied upon a document titled "Lay Evidence By Robust Builders Pty Ltd" (Exhibit A). This document had been lodged by hand with the Parramatta District Court Registry on 8 October 2019. Much of what appears in Exhibit A appears to reprise that which was set out in Mr Mehndiratta's affidavit of 30 March 2020. 4. Mr Mehndiratta also relied upon a document titled "Lay Evidence Reply By Robust Builders Pty Ltd" (Exhibit B), which he authored. The document was undated but the solicitor for the Owners noted from the Bar Table that he received it on or about 4 April 2023. The document was prepared by Mr Mehndiratta. Although there were problems of form, including argumentative assertions and conclusions in it, it was this document that indicated the substance of the Builder's position, at least in relation to the state or condition of the construction works, in response to the owners' evidence and by reason of the Builder's essentially unrepresented status, some latitude was given as to formal matters from the perspective of rules for the admissibility of the evidence. The critical issue was considering fairness to the Owners in allowing the Builder to rely upon evidence which may have been deficient as to form. 5. Mr Mehndiratta also read an affidavit sworn by a forensic examiner, Ms Melanie Holt (21 October 2021) notwithstanding that she had been engaged to provide expert opinion evidence by the Owners; not the Builder. 6. Although Mr Mehndiratta was precluded by my evidentiary ruling early in the hearing from putting on further (lay or expert) evidence in reply to the Owners' evidence this ruling was directed to the preparation and service of further affidavit (or opinion) evidence, and a significant number of email and other correspondence upon which he cross-examined the Owners' witnesses was admitted. 7. In defence of the Builder's Claim and in support of their Cross-Claim, the Owners primarily relied upon: 1. the affidavit of Pankaj Barai sworn 8 November 2022; 2. the affidavit of Fahima Mahjabeen sworn 7 November 2022; and 3. a report prepared by a building expert, Mr Paul O'Donnell of the firm 'Canberra Sydney Inspections' dated 26 October 2022. issues associated with the builder's claim The date the contract was entered The Builder's evidence 1. In his affidavit and also in his document lodged with the Court on 8 October 2019 (Exhibit A), Mr Mehndiratta asserts that the parties entered into a written contract on 23 December 2016, although, in his Opening Address, he acknowledged that an earlier contract had been signed in September 2016. This earlier document was 'amended.' The reason for his argument that the latter contract superseded the first one was that, according to what Mr Mehndiratta said in his opening address, the second defendant was frequently requesting changes to the contract in the intervening period and, he implied, he wanted a degree of certainty. The December 2016 version (if I could call it that) was supposed to fix the specifications. He contends that the defendants were well aware of and had explained to them (by him) the version of the contract on 23 December 2016. 2. Mr Mehndiratta annexed to his affidavit the contract and what he asserted to be variations signed and acknowledged by Mr Barai. He did the same with Exhibit A. The contract was in the NSW Fair Trading format. 3. On the copy of the contract included at p 5 of Mr Mehndiratta's affidavit, there is a handwritten annotation that appears on the title page ('Home Building contract for work over $20,000) that did not appear on the corresponding page in Mr Mehndiratta's affidavit. The annotation reads: "Amended Final Contract Pankaj Barai and Rahima Robust Builders Pty Ltd for $510,000 on 23 December 2016. Previous Contracts and Tenders Null and Void." Apparently underneath is a signature, but Mr Mehndiratta did not identify whose it was. 1. Page 8 of Mr Mehndiratta's affidavit is depicted as follows: 1. Page 10 of Mr Mehndiratta's affidavit (also p 19 of Exhibit A) is depicted as follows: 1. Clause 4 (p 15 of Mr Mehndiratta's affidavit), which provided for the deposit, indicated a sum of $51,000. 2. Clause 12 (p 20 of Mr Mehndiratta's affidavit) provided for progress payments at various stages of work. 3. At p 32 of Mr Mehndiratta's affidavit was the section of the contract titled 'Record of Adjustments and Variations'. Under this section, reference was made to a contract price of $510,000. There was also handwritten insertions under the sub-heading 'Variations' which, when combined, appeared to yield an aggregate sum of just over $72,000. 4. At p 34 of Mr Mehndiratta's affidavit was a typed document. The typed words were as follows: "We confirm that the previous contract amount now has changed. We are getting refund from the builder for the couple of stages we agreed upon not to be done by Robust Builders any more as per the agreed terms and conditions with immediate effect. Pankaj Barai" 1. On the face of this typed document there were various handwritten annotations. So far as they are legible, these included: "PREVIOUS CONTRACT 350,000 + 160,000 – NULL VOID NOW NEW CONTRACT 510,000.00 – 23/12/16 APPROVED REFUND FOR … FLOOR …. 2310.00 APPROVED" 1. Underneath those were various purported signatures. Mr Mehndiratta asserts that these were the signatures of the owners. 2. Other relevant documents were annexed to Mr Mehndiratta's affidavit (pp 35-39 incl). To paraphrase, they all were documents, purportedly signed by Mr Barai acknowledging certain events occurring on 20 April 2018, 20 February 2018, 20 April 2018 and 6 March 2018 (the last document - which also purported to indicate the second defendant's signature - in this sequence being undated). These also appeared in Exhibit A. 3. There was a document (pp 40-44 of Mr Mehndiratta's affidavit) titled "TENDER WITH DETAILED SPECIFICATIONS". This was purportedly also signed by the Owners (as well as Mr Mehndiratta) on 23 December 2016. 4. In another document (Mehndiratta's affidavit, p 36), being one purportedly signed by the first defendant on 20 February 2018, there is purported confirmation of a meeting occurring (apparently on that date) in which certain documents were received by Mr Barai. A handwritten annotation indicated that one of the documents was a copy of the contract. 5. The Owner relied upon an insurance certificate issued by icare (which appeared with other documents in Exhibit HH), apparently dated 28 March 2017 which identified as the contract date '23 December 2017'. 6. The Owner relief upon an application to HBCF apparently prepared by the builder on 22 March 2017 and which was emailed to the owners on 22 March 2017 (Exhibit GG). In the application, the 'construction type' was marked "New Single Dwelling" (notwithstanding that under the sub-heading 'Construction Description' reference was made to a "Double Storey House") and 23 December 2016 was stipulated as the date the contract was signed. The contract price was identified as $510,000. 7. In the course of his closing address, Mr Mehndiratta was granted leave to re-open the plaintiff's case to tender an email he sent to both owners at 1:37pm on 20 November 2016 (Exhibit QQ). The email attached several documents: a contract signed by the parties, signed plans and Specifications. 8. The first of these attachments was the same version of the contract attached to the owners' respective affidavits which, amongst other things, stipulated a contract price of $350,000 (but which on the title page bore handwritten annotations including an assertion of a 'total' contract price of $510,000). 9. The second document was the 'Post Contractual Variations' document which was the second part of Exhibit 1; a document I will later summarise. This included a 'New Progress Payment Schedule' (signed by the builder on 20 November 2016) which referred to the contract price as $510,000. 10. A third document was some plans of the property, apparently bearing the initials or signatures of the owners (although the owners were never cross-examined on them, as the existence of the plans was only brought to the attention of the Court during closing submissions). 11. A fourth, and final document annexed to the email on 20 November 2016 was titled 'Specifications'. It did not bear the signatures of the owners (or Mr Mehndiratta). 12. This email did not attach the first part of Exhibit 1, which was a document titled 'Tender'. To anticipate somewhat, I note that Ms Mahjabeen gave some evidence consistent with this omission: she said that although she recalled seeing the 'Post Contractual Variations' part of Exhibit 1, she did not see the 'Tender' part of it. 13. In closing address, Mr Mehndiratta was also granted leave to reopen the Builder's case so as to entitle it to rely upon an email he sent to both owners at 3:52pm on 21 November 2016 (Exhibit RR). Before I summarise that, I note that in the same Exhibit, there is another email sent by Mr Barai to Mr Barai on 19 April 2016 (at 9:30pm), well before the owners entered a contract with the Builder. Pertinently, in that email, Mr Barai indicated he was sending 'the contract paper' to Mr Mehndiratta. Understood in context, this must have been a reference to an unexecuted contract which the owners had received from a different builder. But he also explained that he would send the 'other s 149 form' later. It was this last reference which triggered Mr Mehndiratta's email response on 21 November 2016. He asked Mr Barai to email to him "149 (2 and 5)" and indicated that document should not be older than 3 months. The Owners' evidence Mr Barai 1. Mr Pankaj Barai deposed that he and his wife initially wanted a different builder to undertake the works, but were persuaded by Mr Mehndiratta to engage him. This, he says, occurred in about the middle of 2016. 2. Mr Barai deposed that on or about 24 September 2016 he and his wife were present at home and that at about 5:00pm that day Mr Mehndiratta attended the property and presented a written contract for both of them to sign. 3. The version of the contract that Mr Barai annexed to his contract was the same as that which was annexed to Ms Mahjabeen's affidavit. 4. Page 22 of Mr Barai's affidavit and Page 13 of Ms Mahjabeen's affidavit is depicted as follows: 1. It was pointed out to Mr Barai in cross-examination that on the version of the contract he said he had signed (at p 25 of his affidavit) that in the section headed "Owner and Contractor details" the details of 'address' and 'title details' were missing. In re-examination, Mr Barai said that Mr Mehndiratta did not suggest, or invite him (or his wife) to fill in those details. 2. In the version he attached, clause 4, which dealt with the deposit, the amount of the deposit was left blank (Barai, p 31). He later said in his evidence that the owners paid a deposit of $45,000. A reference to this figure is contained in Exhibit CC. 3. Also in the version of the contract attached to Mr Barai's affidavit, under clause 12 the words "Refer to Variation List" were typed. This was another difference to the version of clause 12 in the version of the contract attached to Mr Mehndiratta's affidavit. I was not able to locate within Mr Barai's affidavit where the said 'Variation List' appeared. On the page titled 'Record of adjustments and variations' (Barai, p 50) where provision is made for a list of variations, that part of the document was left blank. (In Mr Mehndiratta's version of the contract some details for variations were inserted, at page 32 of Mr Mehndiratta's affidavit). 4. Mr Barai further deposed that Mr Mehndiratta assured him that variations would be included in that price. He deposed that he and his wife signed the parts of the document as Mr Barai had directed them before returning the version to Mr Mehndiratta. 5. But he deposed that after doing so, Mr Mehndiratta said that he had another document that he wanted them to sign. This was a document that contained the same provisions as the earlier document that they have both signed albeit that it was completely blank in terms of handwriting. Mr Barai deposed that Mr Mehndiratta asked him and his wife to sign the document. This, Mr Mehndiratta explained to them, was to cover the situation if Mr Mehndiratta had to change the price or change anything actions. He explained that they should sign in order to save time. 6. Mr Barai deposed that he signed the document because he believed that he could trust Mr Mehndiratta and was anxious for construction to proceed. He and his wife then signed this other document, again, as Mr Mehndiratta directed them. He recalled that after they had done so, Mr Mehndiratta indicated that he would prepare documents and lodge them with the bank, including the tender and other documents. 7. Mr Barai deposed that in late November 2016 he received a telephone call from Mr Mehndiratta. The effect was an assurance by Mr Mehndiratta that he had lodged the contract, with a list of variations, as per the tender to the bank and that the bank would revert to Mr Barai and his wife for the purposes of loan approval. He recalled seeing an email from Mr Mehndiratta or about this time attaching the tender document, which listed variations with a total cost of $160,000. 8. During the hearing, the Owners tendered a document, Exhibit 1, which had not been annexed to either of the owners' affidavits. There were two parts to this document. The first part was a document titled 'Tender.' Both Mr Barai and Ms Mahjabeen generally recognised it as a document that had been prepared by Kurmond Builders. But Mr Barai said in his evidence that whilst this was generally so, the section in this part of the document under the heading 'Additional Inclusions' (which was in bold print) was information that the Builder (Mr Mehndiratta) had created. Mr Barai accepted that he signed this part on 20 November 2016. (Ms Mahjabeen recalled seeing it before, but could not recall the circumstances in which she had seen or signed it: T 421.34 – 424.39). Mr Mehndiratta did not challenge what appeared to be his signature on this part of Exhibit 1. 9. The second part of Exhibit 1 (representing the last two pages) relevantly were an attachment titled 'Post Contract Variations'. This document individually described and quantified items, tallied up the individual values and indicated a "Total Variation" of $160,000, with a "Total Contract Price" of $510,000. The document was signed by Mr Mehndiratta and the two owners and underneath the signature block was a date identified as 20 November 2016. 10. On 16 December 2016, Mr Barai received correspondence (Annexure B to his affidavit) from the National Australia Bank. The letter indicated the Bank's approval of loan finance to assist with the construction works. Relevantly, the letter identified the contract price (or construction cost) as follows: "$510,000 including variations". 1. Mr Barai denied having any meeting or discussions with Mr Mehndiratta in respect to any further contract or documents signed in December 2016. 2. On 4 April 2017, 22 June 2017 and 24 July 2017 Mr Barai sent emails (Annexure C) to Mr Mehndiratta in which he relevantly asked the latter for copies of the contracts (signed by the Builder and Owners), the tenders and the contractor license. 3. In his cross-examination, Mr Mehndiratta referred Mr Barai to a number of documents purportedly bearing Mr Barai's signature (in Exhibit A at pp 9, 10, 11 and 83; corresponding to pp 39, 34, 36, & 38 of Mr Mehndiratta's affidavit, respectively). The effect of Mr Barai's evidence was that he: 1. denied creating or signing the document which, to paraphrase, purported to request that all documents or communications about plans, variations or the supply of materials be supplied in person; 2. denied creating or signing the document purporting to confirm that the previous contract price had changed; 3. accepted that he had affixed his signature to the document confirming (on 20 February 2018) his receipt of a range of documents identified, (by handwritten annotations), as the contract, the stamped plan, Home warranty insurance, an NAB progress claim certificate 4. accepted that he supplied written confirmation (on 6 March 2018) for receiving the sums of $2,310 and $4,500 from the builder. 1. As to the last of these documents, he said that the sum of about $6,000 was supplied in connection with a retaining wall, even though Mr Barai did not recall that work being carried out. 2. Mr Barai was referred to (Exhibit AA). He said in his evidence that the reference to $100,000 was erroneous. He said that there was no other contract in which he entered with the builder for that sum. He was later shown a document purporting to indicate entry into a $100,000 but said he never signed it or saw his wife sign it. (by reason of there being no reference by either party to any contract for $100,000 entered into on 24 September 2016 in their respective pleadings – or for the builder, in any of Mr Mehndiratta's affidavit, Exhibits A and B - I directed that the evidentiary effect of any answer about this document was limited only to the witness, Mr Barai's credit). A suggestion appeared to be made to Mr Barai that on 24 September 2016, all that was agreed was that the builder would construct a single storey dwelling. To that end, Mr Barai (but not Ms Mahjabeen) was shown a document which plainly indicated a proposed two storey dwelling (Exhibit EE) prepared on 15 December 2016 – after the date of the contract propounded by the owners and before the date propounded by the Builder. 3. In cross-examination, Mr Barai said that he had arranged for his solicitors to 'hire' Ms Holt, the forensic examiner; and did not speak to her himself and did not understand why she did not proceed to prepare an opinion. He also said that it was his solicitors' responsibility to hire a forensic examiner. He was unaware of any court order that Mr Mehndiratta provide the original of the version of the contract he propounded to Ms Holt. Ms Mahjabeen 1. Ms Mahjabeen deposed to not entering into any contract with Mr Mehndiratta in December 2016. She only signed a contract in September 2016. 2. She provided some background to this. She recalled that in late August 2016 she and Mr Barai had (initially) decided to retain another builder to construct the property (Kurmond Builders), and were about to enter into a contract with that particular builder, but she and her husband were persuaded by Mr Mehndiratta against Kurmond Builders. She recalled that Mr Mehndiratta promised, in effect, to match what Kurmond Builders could do, but provide a little more. She said (in re-examination) that on 22 September 2016, Mr Barai informed her that Mr Mehndiratta was going to come over to their place for the purpose of signing a contract. She recalled that on 24 September 2016, Mr Mehndiratta came over to her and Mr Barai's rented property, in the company of Sanya Devi. She said in her cross-examination, that she had received a positive report about Mr Mehndiratta's work from a friend for whom Mr Mehndiratta had built a granny flat. 3. She deposed that Mr Mehndiratta pulled out a document and informed her and Mr Barai that he had a contract for them to sign. She noted that it had the words "Home building contract for work over $20,000" written on it. She also recalled Mr Barai asking Mr Mehndiratta whether variations were included in the price and Mr Mehndiratta assured them that they were; adding that the tender would be included 'at the back.' She recalled seeing her and Mr Barai's details being handwritten on the document and identification of the contract price of $350,000. She recalled that after she finished reading the contract, Mr Mehndiratta directing them to sign on the second page and initial the others. Each of them signed on the second page and they both initialled the other pages. Mr Mehndiratta then took the document. 4. In cross-examination, she said that she recalled Mr Mehndiratta and Ms Sanya Devi coming over to rented place (in Artarmon). She understood that the contract price was to be $510,000; and that this price was to include, as a component, $160,000 for variations which were to be subsequently supplied by Mr Mehndiratta; but which were to be the same as the variations that had been prepared by Kurmond. She alluded to the very front page of the contract annexed to her affidavit which contained Mr Mehndiratta's handwritten annotation breaking down the components of the price. 5. Ms Mahjabeen deposed that Mr Mehndiratta presented her and her husband another document for them to sign. This bore the same title as the contract they had signed and was essentially the same document, but without any handwriting in the document. She deposed that Mr Mehndiratta asked them to sign it and explained to them that he would need it if there was ever a need to change the price or have more variations. She deposed that Mr Barai initially remonstrated with being asked to sign a blank document but Mr Mehndiratta told that this was just to save time and indicated that he could not start work unless it was signed. Under cross-examination, she said she went through this document. 6. She deposed that she and Mr Barai then signed and initialled that document. She observed Mr Mehndiratta sign and initial it as well and recalled him saying that he would send the contract to the bank for loan approval. 7. Under cross-examination, when she was taken by Mr Mehndiratta to page 19 of Exhibit A, she denied that she or Mr Barai inserted the handwritten details regarding the contract price or the date. With reference to Exhibit A page 19, she disputed that the printed (capitalised) reference to her was in her handwriting, although she accepted that the signature attributed to her looked like her handwriting. 8. Later, when shown a range of documents annexed to Mr Mehndiratta's affidavit (pp 35, 39, 40-44, 46-54, 55-57, 58, 59, many of which were reproduced in Exhibits A and C) her common answer was that although a signature looked like her husband's, she did not see him sign it and Mr Barai did not discuss the contents of the (relevant) document to her. Where a signature or initials resembled her signature or initials, Ms Mahjabeen denied that she applied it or them. On the last of those documents (p 59), there appeared an incomplete handwritten reference to her daughter's name. Ms Mahjabeen said that she may have verbally referred to her daughter when speaking to Mr Mehndiratta, but indicated that her daughter (apparently about 13 years of age at the time) had no involvement in the construction works. Three of these documents appeared to be purported written variations purportedly signed by Mr Barai and these all seemed to bear the date 5 July 2018. However, she said she did not see her husband sign the documents or have a discussion with her about them. 9. In her affidavit (and in her evidence in Court) Ms Mahjabeen denied signing any document listing the contract price as $510,000. 10. She said in her cross-examination that Mr Mehndiratta had emailed to her (or her husband) variations on 20 November 2016. Expert evidence 1. Ms Melanie Holt is a well-known forensic examiner. The Owners' solicitors asked her to forensically examine the version of the written contract which the Builder propounded and, in particular, to opine on whether handwriting on the document had been added to pages on which the owners had applied their signature, by a different pen. 2. In her affidavit, which the Builder read in the hearing, Ms Holt deposed to communications with Mr Mehndiratta on 21 June 2022 and also an arrangement to meet the latter on 25 June 2022. On the last date, she met Mr Mehndiratta and he provided certain documents to her. At the time he provided these documents to her, she did not have much time to check what they were as she had a pressing teleconference to attend to. 3. Later, she deposed, she checked what documents she had been given; but she came to realise (on or about 20 July 2022) that what was omitted from the bundle that she had been supplied with the original of the version of the contract she had been engaged to examine. She alerted the owners' solicitor to this circumstance. 4. As at the date of her affidavit, she had still not received the version of the contract she had requested and expressed her inability to report her opinion as she had been instructed to do. 5. In his cross-examination of both Ms Mahjabeen, Mr Mehndiratta referred to an email from Ms Holt to himself in which it appeared that she acknowledged receiving the original contract that she had requested. Ms Mahjabeen later said in her evidence that she (and her husband) believed that they could no longer afford to pay Ms Holt. Mr Barai gave evidence substantially to the same effect. Submissions The Builder's submissions 1. Mr Mehndiratta submitted that it was not possible for him to 'fake' documents. He was happy to have various documents inspected by Ms Holt. The owners' explanation for how they effectively dis-engaged with Ms Holt should not be believed: they did not mention to him that they did not have the money to pay her (or want to pay her) to complete her forensic examination. 2. He submitted that a close look at some of the signatures he contended that the owners inserted into the range of documents in Mr Mehndiratta's affidavit (and Exhibit A) bore some distinctive marks (eg p 10 of Exhibit A) not always apparent in every one of the signatures. This indicated the unlikelihood that he was responsible for all of the signatures. 3. Mr Mehndiratta referred to the documents attached to the icare application (Exhibit HH, whose content he accepted he was responsible for). This had identified the contract date as 23 December 2016. 4. Mr Mehndiratta submitted that the 'Tender' document, as part of Exhibit 1, was not part of the contract. He cited the attachments to Exhibit QQ. The Owners' submissions 1. Mr Lambley did not disagree with my suggested conception (raised in argument) that the contract was entered into on 24 September 2016 for a contract price of $350,000 but, on the same day, a collateral agreement was entered into whereby the parties agreed that the contract price would be adjusted to $510,000 upon agreement that variations which were on that date within the parties' contemplation but were still to be negotiated, would not extend beyond $160,000. 2. Mr Lambley argued that both owners denied entering into any contract on 23 December 2016. He noted that the version which the owners propounded was the version which Mr Mehndiratta himself attached to his email of 20 November 2016 (Exhibit QQ). He also noted that Mr Mehndiratta did not give evidence of surrounding circumstances as to how the owners would have agreed to enter into a contract on 23 December 2016. Mr Lambley also observed that until the first day of the hearing (when I effectively determined that it was too late for him to do so) Mr Mehndiratta had not evinced any intention to call Ms Sonya Devi, who the owners had identified in their affidavits as being present at a time when contracts were entered. I inferred from this that the owners were inviting me to draw a Jones v Dunkel inference from the builder's omission to call her. The builders' submissions in reply 1. Mr Mehndiratta submitted that the Court should find that Mr Barai was not a witness of credit and had been exposed as a liar throughout the hearing. Particulars of instances of lying were when Mr Barai: 1. said that he did not have an independent builder expert report (other than Mr O'Donnell) when it appeared from Mr O'Donnell's report that the latter was instructed that a draft report had been obtained from Capital Management; 2. did not provide to his solicitors certified copies of plans which became Appendix 5 to Mr O'Donnell's report (the certified plans were tendered in the builder's case as Exhibit J); 1. Mr Mehndiratta submitted that the Court should find that Mr Barai's credibility was diminished following differences between his evidence, and the evidence of other witnesses, as follows: 1. he and Ms Mahjabeen gave different accounts as to how they obtained access to the property in July or early August 2018; 2. after initially stating (in his affidavit) that he only received a threat by the builder via an SMS, he later changed his evidence to say that he had also received a call. This was to align with Ms Mahjabeen's evidence in which the latter had recalled Mr Barai reporting to her that he had received a call; 3. Ms Mahjabeen said that at about the time of the Fair Trading inspection, Mr Barai had mentioned to her that insulation was missing, but Mr Barai said he did not see any missing insulation. Consideration Credit Mr Mehndiratta 1. I did not regard Mr Mehndiratta to be either a reliable or credible witness. As to the former, whilst making allowance for the dated nature of the events at the time he gave his evidence at the hearing, his evidence was nonetheless punctuated by "I can't recall," to the point that it resembled a mantra and many of these responses were to questions not about events occurring between 2016 and 2018 but much more recent procedural developments, such as when and in what circumstances he prepared evidence in this proceeding in reply. 2. When he gave evidence, he struck me as often non-responsive and was prone to embellish. He struck me as intent to give answers which he felt might assist the Builder's case and he gave some evidence which was plainly implausible. Much of this was again centred on the procedural way in which the parties prepared for the hearing. For example, Mr Mehndiratta said that of the O'Donnell expert building report relied upon by the Owners, he said he only received 16 pages and blank pages with exclamation marks, and believed that it was incomplete; but he did not complain to the owners' solicitors about this. For another example, he conceded he did not prepare an expert report in reply to Mr O'Donnell and explained that he was denied access to the property; but he neither asked the Owners for permission to enter the property to allow an expert to inspect; nor sought an order from the Court to compel such inspection. As a further example, it struck me that he dissembled when explaining the apparent omission from his document (which he did not date) representing his "Reply" to the lay and expert evidence served by the Owners: after initially suggesting that he had not had the opportunity to reply to all of that evidence, he then appeared to suggest that there was some other evidence that he had prepared, which he neither 'read' nor tendered in the Builder's case prior to his being cross-examined. 3. Sometimes also, he tried to shift responsibility to others for not being able to provide responsive evidence. This included what he identified as the Builder's accountant (whose surname he could not recall spelling) and Ms Devi (the person whom he had unsuccessfully applied to have called as a witness to give evidence in the Builder's case on the first day of the trial). 4. As I point out elsewhere in these reasons, it appeared at times, through his cross-examination of the owners that Mr Mehndiratta was even casting doubt upon the existence of any contract being entered into on 24 September 2016 and even produced a document, for Mr Barai's consideration, that purported to prove a $100,000 contract being entered into on that same date where none of the parties, in their pleadings or affidavits, had previously referred to such contract – and where he arranged to send the $350,000 contract of 24 September 2016 to the Owners on 20 November 2016 (Exhibit QQ). I found this conduct cynical and opportunistic. 5. He had a propensity, to the say the very least, of creating documents which he deliberately did not date. This had the effect, if not the design, of creating a confusing and/or contentious paper trail in the event, which materialised all too often in this litigation, that the owners disputed signing documents. 6. At the conclusion of his evidence, I derived no confidence from his evidence save to the extent that it was corroborated independently by reliable documents (ie not those which he or his company had generated) or was consistent with the objective probabilities. Mr Barai 1. I reject Mr Mehndiratta's attacks on Mr Barai's credibility and his accusations of lying. Mere differences in his recollection in comparison to what Ms Mahjabeen or what Mr O' Donnell had said on any particular topic (major or minor) was not indicative of Mr Barai lying. As pointed out to Mr Mehndiratta in his closing address, he appeared to elide any distinction between a mistaken recollection (about events which in large part occurred over 5 years ago) and lying. As I also pointed out to Mr Mehndiratta in argument, the circumstance that in some respects (which were very small in number) he differed in his recollections with what his wife or Mr O'Donnell said did not derogate from his credibility or reliability: if his evidence was in all respects identical to these two other witnesses, I am quite sure that Mr Mehndiratta would have accused him of engaging in wholesale collaboration with the other witnesses and then used that as a platform to challenge Mr Barai's credibility. 2. I formed the impression that Mr Barai was doing his best to tell the truth, although his recollections of what occurred were less confident than what appeared from the detailed narrative set out his affidavit. There were some instances where evidence of his recollections about whether he sent an email to Mr Mehndiratta were proven to be wrong (eg Exhibits Y and JJ, NN and OO). Evidence about his recollections in those respects were about emails sent in September 2017 and March 2018, being nearly 6 or 5 years ago (respectively). 3. Mr Barai was softly spoken and struck me as nervous. He was, at times, defensive and was anxious to provide further information than what a particular question may have required. Like his wife, on occasions, he thought it a sufficient answer to a question to simply make cross-reference, without more, to his previously answered a question. These matters led me to form the further impression that he was anxious about the effect of his answers on his (and his wife's case). My impression of him overall was a man who was earnest and studious, unsophisticated and naïve to a high degree and somewhat timid. Signing blank forms without reading and accepting what he was being told by the builder at face value represents supreme gullibility although in fairness to him, the contemporaneous email correspondence suggests a continuous anxiety, bordering on desperation, about his and his family's living arrangements throughout the works; which helps to put his conduct into some context. Ms Mahjabeen 1. Ms Mahjabeen was visibly distressed at certain points when she was cross-examined. At one point, I adjourned the hearing temporarily after she appeared to tremble after Mr Mehndiratta referred to her 13 year old daughter in a question. She struck me as somewhat proud – on occasions she refused to answer some questions raised of her by Mr Mehndiratta until I directed her to do so, but I considered that she was an honest witness. It was also the case that although she professed to have a limited recollection of the surrounding detail of certain events, she indicated, I considered quite spontaneously and genuinely, some additional detail during her cross-examination in response to certain questions. An example of this was her recall was the substance of what Mr Barai had informed her he had reported to Fair Trading in August 2018. She also gave a reasonably detailed answer as to her own recollection of the state of works when and after she and her husband moved in 2018, which I will return to later in these reasons. A qualification was her evidence about how she or her husband accessed the house after the housewarming ceremony in July 2018 which I did not regard as persuasive. She appeared to me determined and was not significantly shaken. I found that she was generally a reliable witness. Forensic consequences of credit findings 1. Generally, a consequence of my adverse credit findings about Mr Mehndiratta is that absent any admission by the owners, reliable contemporaneous documents and the inferences and objective probabilities arising from other documents or events, I am unable to accept that the owners either signed or initialled documents in the evidence the Builder relied upon at the material dates that the Builder contends that they did. An example of this is the contract of 23 December 2016 which the Builder propounded. Another example was three written documents (contained on pp 55-57 of his affidavit; and also in Exhibit A, pp 53-55) purporting to be variations dated 5 July 2018. And if the Owners did not know of documents the Builder asserted that either or both of the owners signed on the material dates, and the Owner was aware of this state of affairs, the ordinary representation that a party's signature is taken to convey by signing a document [2] does not apply. Analysis 1. The following analysis deals with the issues of when the contract was entered, whether the owner was entitled to claim for variations (which were, on the owner's case, additional variations after those agreed on 20 November 2016) after the contract was entered (whatever that date was). 2. The Builder's case on when the contract was entered into appeared to me ambivalent. In some instances in correspondence Mr Mehndiratta asserted and argued at this hearing is that the contract entered into in December 2016 replaced the one that the Builder admits was entered into in September 2016; rendering the latter as being 'null and void'. However, it is also the case that other more contemporary documents contained a handwritten annotation, apparently by him, which described the September 2016 contract as being only 'amended'. The Builder did not plead in any Reply to the Owners' defence (which identified 24 September 2016 as the date for at least part of the documents constituting the contract), and Mr Mehndiratta did not otherwise assert (at least in his affidavit or Exhibits A or B) that the contract of September 2016 was unenforceable for any want of certainty or completeness. 3. The distinction between a contract that is subsequently modified and a contract that brings an end to an earlier contract is well recognised [3] , even if it may sometimes be difficult to identify in practice. One important legal consequence is that modifications to a contract are required to be supported by further consideration [4] ; whereas if an entirely new contract is formed there is automatically a consideration. As explained in Sara Lee at [23] whether a new contract has been entered depends upon the (objective) intention of the parties disclosed by the later agreement [5] . Ultimately, though, for the reasons that follow, it is unnecessary to find whether one contract superseded another or whether one version changed to one contract amounted to a variation. 4. The builder contended that the contract entered into on 23 December 2016 was for a contract price of $510,000. The owners contended (and had admitted in their Defences, paragraph 6(vi)) that, by 20 November 2016, the contract price was $510,000. Perhaps contrary to the parties' mutual expectations, it struck me that what was most material about the question whether the contract was entered was not so much what was the contract price, but more what provision the contract made for variations once the works commenced. When the contract was entered into & entry into collateral agreement 1. In my view, a contract was entered into on 24 September 2016. Both parties conducted the proceeding on the basis that a binding contract came into existence on that date: the difference was that the builder contended that by reason of events, this contract subsequently was either amended or was rendered 'null and void.' That contention was manifest on numerous documents that Mr Mehndiratta relied upon in his evidence; and the owners maintained that they signed the contract on that date to manifest their agreement. 2. It is true that in the version of the contract annexed to the owners' affidavits, details are missing from one of the pages of the contract identifying the address for the works, including lot details. However, although there is a statutory requirement for there to be a 'sufficient description of the work' (Home Building Act 1989 (NSW), s 7(2)(c)), a provision of that kind is for the benefit of the owner and it would be incongruous if a builder could rely upon its absence to avoid the contract. There is no entire agreement clause in the contract that would preclude the owners' reliance upon parole evidence. Nor is there any statutory requirement (under the Home Building Act 1989 (NSW)) that mandates that all the terms of a contract to which the statutory warranties apply must be written and/or contained in the same document. Moreover, Mr Mehndiratta did not challenge the owners' versions of conversations that occurred on 24 September 2016 that they signed the document which supplied background known to the owner and the builder or evidence to indicate that the Builder knew where they lived. 3. The contract price for the Fair Trading version of contract annexed to the owners' respective affidavits was identified as $350,000. Alongside the reference (see for example, Barai, p 25), there was a warning that the contract price could increase and stipulated several reasons for why that was so, including variations. 4. In Crown Melbourne Ltd v Cosmpolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 at [22] the plurality said: "a representation made in the course of negotiations may result in an agreement collateral to the main agreement if it can be concluded that the parties intended that the representation be contractually binding. It may be so concluded if the representation has the quality of a contractual promise, as distinct from a mere representation. The question of intention is adjudged by reference to the words and conduct of the parties, but it is an objective test – of what a reasonable person in the position of the parties would necessarily have understood to have been intended." 1. On the same day, 24 September 2016, the parties also entered into a collateral agreement that (a) this contract price would be subsequently varied to factor in variations that a third party, Kurmond Buildings had quoted the owners (and which had been conveyed to the builder), (b) which variations were the subject of further negotiations between owner and builder, and (c) the Builder promised that the value of those confirmed variations (after negotiations) would not exceed the sum of $160,000. After correspondence between the owners and Builder in the intervening period from 24 September 2016, on 20 November 2016, the parties agreed that the contractual price was varied to $510,000 inclusive of the variations identified, and separately quantified, on 20 November 2016, in Exhibit 1. 2. Exhibit 1 was a composite exhibit, comprising two documents. The 'tender' part of Exhibit 1 was substantially created by Kurmond Builders, but was subsequently modified by Mr Mehndiratta. This would be consistent with (a) Mr Barai's evidence, by which he identified Mr Mehndiratta as being responsible for the section titled "Additional Inclusions" and (b) Ms Mahjabeen's evidence, which I accept, concerning Mr Mehndiratta's promise that he could "do the same things that you want from Kurmond" (Mahjabeen, paragraph 10) and the tender he prepared would be "the same one that you have me that you got from Kurmond Builders" (Mahjabeen, paragraph 16; see also Barai, paragraph 11). 3. My conclusions concerning the date the contract was entered and the existence of a collateral agreement are supported by several circumstances. 4. First, it reflects the evidence of the owners of what was said on the subject of price and variations, which I accept. 5. Secondly, the owners' evidence is supported by the handwritten annotations (which I find was inserted by Mr Mehndiratta) that appears on the title page to the version of the contract each of the owners annexed to their respective affidavits, signalling the 'base' price ($350,000), 'Variations' ($160,000) with a total of $510,000. As Mr Lambley correctly emphasised, it was this version of the contract which was attached to Mr Mehndiratta's email of 20 November 2016. 6. It is important, also to recognise, that the contract price was not $510,000 as at 24 September. If it was, then that figure would have been inserted expressly into the stated contract price appearing, for example, in p 25 of Mr Barai's evidence. The objectively ascertained intention of the parties, manifested by their contract, was that the contract would not increase from $350,000 to $510,000 independently or irrespective of the parties agreeing upon the variations up to the value of $160,000. There would be no benefit to the owners from that. 7. Thirdly, by the National Australia Bank's loan approval to the Owners which indicated, in the letter dated 16 December 2016 (Barai affidavit, p 51), the contract price of $510,000 inclusive of variations. It is immaterial whether Mr Mehndiratta actually saw this letter – although he implausibly suggested that he had not just because the address referred to in the letter omitted the number from the Builder's street address. He had the opportunity to (but did not) refer to the letter in his evidence in reply. The Owners had noted (in Exhibit AA) that their lender required details of how the "additional $160,000" would be spent. That additional sum was a reference to a price on top of the 'base' contract price of $350,000 identified in the contract on 24 September 2016. 8. I also note that the Fair Trading rectification order of August 2018 also indirectly pointed to 24 September 2016 as the contract date. I say indirect, since the Inspector had allowed the builder until 24 September 2018 – the two year anniversary of the date the contract was entered – for it to complete the works (Appendix 7 to Exhibit 4). The two year period reflected the warranty period that the Home Building Act provides (s 18E(1)(b)) an owner to commence an action for breach of statutory warranties for defects which do not constitute 'major' defects. I infer that Mr Mehndiratta would have had the opportunity to inform Fair Trading what his view of the contract date was or to correct the input of the owners in that regard if he believed it was untrue. 9. Incidentally, although there was a reference in the last paragraph in Mr Barai's email (Exhibit AA) to another contract for $100,000, I accept Mr Barai's evidence that this was erroneous. In this regard, I reject the proposition that Exhibit EE indicated that the parties were only agreed as to the construction of a single storey dwelling on 24 September 2016 and that this had changed to a double storey dwelling by 23 December 2016 (or some other date post-dating 20 November 2016). I reject that the point is made good by the email sent, on Mr Mehndiratta's behalf, by Ms Devi (at 8:57pm) on 18 November 2016 (Exhibit FF). Ms Devi did not give evidence to say that there was a 'second contract' for $100,000 or what the source of that belief or information was. 10. In the tender part of Exhibit 1, reference was made to a 'Double Storey home' (item A1) and in the 'Post-Contract Variations' part of Exhibit 1, reference was also made to a 'Double Storey House'. Particularly in the absence of any pleaded reference to a $100,000 contract in any of the pleadings, in Mr Mehndiratta's affidavit (and Exhibits A and B), I regarded his question to Mr Barai (and he did not ask Ms Mahjabeen the same question) as to whether the latter had signed a $100,000 contract with the builder for a second, upper storey, as disingenuous. 11. As to the reference in the owners' email of 4 April 2017 (Exhibit BB), "we signed two papers" alongside the item description (copies of the contracts), this did not amount to an admission by the Owners that a contract was entered into on 23 December 2017. I find that it was a rather loose reference to the owners evidence of applying the date 24 September 2016 and their signatures on one version of the contract on that date and their applying signatures to an effectively blank version of the contract on the same date. 12. Fourthly, the owners' version is also consistent with the content of Exhibit 1, earlier described and which was titled 'post-contractual variations'. This indicated, on its face, that the original contract price had been adjusted to include variations whose value ($160,000) brought the total price to $510,000. This particular document was signed by the Owners on 20 November 2016. Contrary to Ms Mahjabeen's evidence, which appeared to me to be uncertain on the subject, I find that both owners signed both parts of Exhibit 1, being both the Tender and the Post-Contract Variations. It is to be recalled that it was the owners who put Exhibit 1 into evidence in their case, which exhibit partly included the Tender. Their solicitor advocate would not have done so if his instructions were that what purported to be the owners' signatures on that part of the document were not authentic. Mr Mehndiratta admitted that his signature was on the 'Tender' part of Exhibit 1 as well. 13. I recognise that this conclusion is not supported by the attachments which Mr Mehndiratta emailed to the owners on 20 November 2016 (Exhibit GG) which, as I noted, omitted the 'Tender' part of Exhibit 1. Nevertheless, this part of Exhibit 1 was signed and neither party pointed to any inconsistency between this part of the document with the Post-Contract Variations. 14. Quite how all of these specifications were supposed to work harmoniously, or what, if any hierarchy was attached to them, was a subject that was given little attention by the parties at the hearing. 15. Fifthly, although the owners affixed a date (24 September 2016) for one version of the contract (in Mr Barai's and Ms Mahjabeen's respective affidavits), they did not affix a date for the other version (in Mr Mehndiratta's affidavit, p 8).That omission meant that a statutory requirement (s 7(1) of the Home Building Act 1989 (NSW)) was not complied with in Mr Mehndiratta's version; which arguably meant that this version of the contract could be unenforceable for an action in contract at the instance of the builder (s 10(1)(c), although see s 11). It did not matter, however, that the contractor's initials were left off the version of the contract that the owners propounded (noting, as I have done elsewhere, that it was the owners' version that Mr Mehndiratta relied upon when sending his email to the owners on 20 November 2016: Exhibit QQ). 16. Sixthly, there is little or no admissible evidence of events that occurred on 23 December 2016 itself, in any of the narrative accounts given by Mr Mehndiratta (in his affidavit or in Exhibits A or B), or any contemporaneous email correspondence passing between Mr Mehndiratta and Mr Barai in which reference was made to any modified or amended agreement being reached on that particular date. In particular, there was nothing corresponding to a signed list of agreed variations such as that which appeared on Exhibit 1 (executed on 20 November 2016) on or around 23 December 2016. 17. Seventhly, some of the cross-examination by Mr Mehndiratta of the owners in the period between 24 September and the commencement date for the works (such as on the documents which were Exhibits M-O) was really beside the point. It was the second part of Exhibit 1 – the part titled 'Post Contract Variations' which constituted the final statement of variations agreed to by the parties on 20 November 2016, irrespective of any discussion on that subject between 24 September and 20 November 2016. 18. Eighthly, it is true that there are some documents attached to the affidavit and exhibits which bear the owner or owners' names and the date of 23 December 2022, but aside from the owners disputing the authenticity of those documents, there is no direct proof that they inserted their signatures on a version of the contract on that date. To repeat what I said earlier about the forensic consequences of my adverse credit findings against Mr Mehndiratta, having regard to what I have said about my adverse view of Mr Mehndiratta's credibility and reliability, there was no reliable evidence to support the fact of any meeting between the Builder and Owners on 23 December 2016 or the content of it, which would have provided an obvious reason or opportunity for the owners to sign a document, in Mr Mehndiratta's presence, on that particular date. Moreover, noting the extensive list of variations agreed to as at 20 November 2016, it would be inherently surprising if a new contract price, based upon additional variations, would be entered into just over a month later. 19. I also reject therefore, the builder's argument that on 23 December 2016, the owners agreed to the content of the document titled 'Tender with Detailed Specifications' which appears at p 40-44 of Mr Mehndiratta's affidavit. Nor is there any evidence to suggest that they approved of the document which is Exhibit F. Further, and in relation to the 'Specifications' attachment that was emailed to the owners on 20 November 2016, there was no evidence that the owners approved that document. 20. Ninthly, other documents relied upon by the Builder to establish entry into a contract on 23 December 2016 do not sustain the contention. The document (Exhibit N) which the Builder relied upon did not assist the Builder to establish a contract entered into as at 23 December 2016, even though it was created after 20 November 2016. All that Ms Mahjabeen was doing was making a request for further elaboration (as in explanation) of the inclusions. That was not inconsistent with the proposition that inclusions and a list of variations had been agreed on 20 November 2016. 21. The Icare certificate of insurance (Exhibit HH) did not assist the Builder either. Mr Barai said that he had not seen the document and had no involvement in creating the information supplied to the insurer. Ms Mahjabeen was not asked about it. I infer that it was Mr Mehndiratta who provided the information and, given what I have said about his credit, I am unable to accept the content of the document as information independent from him. Contrary to Mr Mehndiratta's submission, the attachments to Exhibit HH were not signed by the owners. 22. The position with respect to the HBCF Application (Exhibit GG) was relevantly the same. Mr Barai said he had not seen this document before. Ms Mahjabeen was not asked about it. I find that it was Mr Mehndiratta who was responsible for the information provided to this third party. 23. Tenthly, contrary to the Builder's submission, Ms Holt's evidence, such as it was, did not assist the Builder to prove that a contract was entered into on 23 December 2016. At its highest, Ms Holt provided no opinion since for a significant period of time she did not receive the document she needed to express an opinion. Even though Ms Holt eventually did receive the original of the version of the contract annexed to Mr Mehndiratta's affidavit, I accept Ms Mahjabeen's and Mr Barai's common explanation for why the owners did not proceed to get a report from Ms Holt; being that they baulked at paying her expert fees after initially engaging her. 24. I draw no inference adverse to the owners that Ms Holt did not complete the examination with which she was originally tasked. Mr Mehndiratta eventually read her affidavit in the Builder's case. It was arguably open to the Builder, being put on notice by Ms Holt's email to him on 6 October 2022 (Exhibit U), which email indicated that the owners did not wish to proceed with her, to engage Ms Holt for itself, to engage that examiner if it wanted to. Given the nature of the task, it is not easy to divine that Ms Holt would have been in receipt of confidential information from the owners that would have presented her with a conflict of competing duties. There is no property in a witness; even an expert one. 25. Mr Mehndiratta submitted in his closing address that it was "impossible" for him to have 'faked' documents – presumably, a reference to signatures appearing on documents. That submission however is one of expert opinion, for which Mr Mehndiratta did not demonstrate any specialised knowledge himself; and the submission is rejected. 26. At any rate, the episode concerning attempts to obtain handwriting evidence went nowhere. Ms Holt's evidence, such as it was, was neutral. This is of some significance in a context where the onus of proving the date of the contract that the builder was suing upon fell upon the builder. 27. Mr Barai said, in his evidence, that he partly paid a deposit on 24 September. A curiosity of his evidence was that he said he paid the sum of $45,000 with a promise to pay an additional amount thereafter. This evidence is significant in two respects. First, it confirms that a contract was entered into on 24 September and before 23 December 2016. Secondly, it provides some support for my finding about a collateral agreement that the stated price of $350,000 would be adjusted to $510,000 once a list of variations was identified and confirmed, which would not exceed the value of $160,000. 28. I prefer the evidence of both Owners that, at Mr Mehndiratta's request, on 24 September they signed another version of the same contract with handwritten details omitted from important provisions, such as the contract price. 29. For the avoidance of doubt, I say that it is implicit in what I have just reasoned that, unless each of the owners agreed to them (as applicable), I do not regard any of the typed documents annexed to Mr Mehndiratta's evidence and purportedly bearing the signature of one or both of the owners as reliable documents: they are undated, not appearing on the plaintiff's letterhead. Their authenticity, in terms of the suggested application of their signatures, was denied by the Owners and it would have been open to the Builder to prove, by admissible and persuasive means that they were given to the Owners, in his evidence in reply. All that Mr Mehndiratta could say (when cross-examined and not in his evidence in reply) in that regard is that they were physically handed to the Owners for their signature. I do not believe that evidence. Was there a cap on claims for variations? 1. The real issue concerning the contractual provisions, so it seemed to me, was whether the collateral agreement had the legal effect, as the Owners apparently contended, that the builder's right to claim for further variations (ie beyond those already agreed on 20 November 2016) was modified. The effect of the owners' contention was that the value of the variations identified and agreed on 20 November 2016 represented a cap on the value of variations with the legal effect that no further adjustment of the contract price could occur on account of variations (as distinct from the operation of other provisions, such as cll 3, 10, 11, 14 and 20). This would amount to a very literal construction of the collateral agreement on 24 September: that the adjustment of the contract price agreed that date could not be adjusted for any further variations. 2. I do not accept the owners' contention. 3. For one thing, Mr Lambley conceded in his closing address that, on the basis of the evidence of both Mr Barai and Ms Mahjabeen, there was at least one variation which the owners accepted had arisen after the contract was entered into, relating to invoice 1167 concerning the tiling. (Their point was that they negotiated a lower sum than the builder claimed) That concession is inconsistent with the owners' contention that there was a cap. 4. As was set out in the explanatory comment alongside the statement of the contractual price (a typical feature of the Fair Trading form of building contract for work over $20,000), the contract price can be increased, in accordance with the contract terms "because not all costs can be absolutely determined at the outset although the contractor is obliged to make reasonable estimates given known conditions. The reasons for possible increases include …. Variations, including those due to unforeseen matters.." 5. As at the dates of 24 September 2016 (when the collateral agreement was made) and 20 November 2016 (when the variations for the value of $160,000 were agreed), and before the Builder commenced the works, there remained a prospect of 'unforeseen matters' that may result in the need for the Builder to make a claim for variations under cl 13. That is to say, the contract price was inherently subject to the prospect of further variations. Any further or additional variations, after variations were agreed to on 20 November 2016, pursuant to the collateral agreement entered into on 24 September 2016 permitted further adjustment of the contract price. This served the purpose of accommodating 'known unknowns' or 'unknown unknowns' [6] . 6. The owners' contention that there were no further permissible variations after the variations agreed to on 20 November 2016 would have the effect of modifying the builder's subsisting right under cl 13 of the contract to claim variations, to the point of negation. Collateral agreements, to be enforceable, cannot be inconsistent with the terms of the contract in this way [7] . 7. Further, viewing the matter objectively, with reference to what the parties knew, the Builder did not, by its conduct, manifest its consent to a situation whereby no matter the cause, it would have to incur additional cost for unexpected reasons not contemplated without the capacity to adjust the contract price. 8. The adjustment made to the contractual price on 20 November 2016 made for a contract price that was still inherently subject to the prospect of further change, for a range of possible reasons including, relevantly, agreed variations. Summary 1. The relevant consequences of these findings are: 1. The contract was entered into between Builder and Owners on 24 September 2016 with a price of $350,000. 2. On 20 November 2016, the contract price was adjusted to $510,000 pursuant to a collateral agreement also entered into on 24 September 2016. 3. By the same date (20 November 2016), the parties had identified and agreed to variations and inclusions in the works to be performed by the Builder. These are indicated in Exhibit 1, and also Exhibit QQ. The first part of Exhibit 1, titled the 'Tender', was substantially sourced in the work that had already been identified by Kurmond Builders; but with this Builder adding certain inclusions. In other words, the Tender effectively represented a modification, by this Builder, of the Kurmond Builders' document. 4. The Builder had (as of 24 September 2016) and retained (as from 20 November 2016) the right to claim for further adjustment of the contractual price, inter alia, by reason of any further variations in accordance with the provisions made for variations in cl 13. 1. It should also be apparent for these findings that I am not persuaded that the owners approved the Tender and Specifications document on 23 December 2016. This finding has implications for Mr Mehndiratta's challenge to Mr O'Donnell's opinions. I will return to this later in these reasons. The claim for unpaid invoices The Builder's evidence The invoices the subject of the claim 1. By Annexure RB2 to his affidavit, Mr Mehndiratta annexed what he asserted were outstanding invoices. Neither in that affidavit (which, I note, was prepared at a point when the Builder was legally represented [8] ), nor in his lay evidence in reply to the owners' affidavit evidence (Exhibit B) did he provide any narrative account to supplement any inferences that would arguably arise on the face of the documents themselves. That can be a forensically risky course for a litigant to take [9] . 2. The invoices which Mr Mehndiratta annexed were as follows (in the order they appear in the annexure, with the amounts stated as being inclusive of GST): 1. Invoice 1130 (17 October 2017) for balance owing on 'next stage framing' claimed to be $6,680; 2. Invoice 1167 (21 April 2018) relating to variously described works (including floor tiles and bathroom tiles) claimed to be $16,890; 3. Invoice 1150v (18 February 2018) relating to an air conditioner for the claimed sum of $16,500; 4. Invoice 1149v2 (22 December 2017) referring to a power pole variation, for the claimed sum of $2,280; 5. Invoice 1149v (22 December 2017) referred to as 'variation windows' for the sum of $1,500; 6. Invoice 1167v (21 April 2018) referred to as 'lights and intercom' for the claimed sum of $14,410; 7. Invoice 1193v11 (5 July 2018), concerning variation costs for sewerage, electrical and plumbing lines, for the claimed sum of $5,060; 8. Invoice 1193v (8 June 2018), with the reference driveway and external steps, for the claimed sum of $8,068.50; 9. Invoice 1193v12 (5 July 2018) with variously described works (including pantry area and fridge pantry supply and installation and variations to tiles in bathrooms and final rubbish removal) for the claimed sum of $10,960; 10. Invoice 1194v1 (29 Jun 2018) with the reference 'Garage variations' for the claimed sum of $10,780; 11. Invoice 1194v3 (29 June 2018), with the reference 'Alarm variation' for the claimed sum of $4,180; 12. Invoice 1194v2 (29 June 2018) with the reference 'Alfresco Variations' with the claimed sum of $17,270; 13. Invoice 1194v5 (29 June 2018) with the reference 'Skipbins Variations' with the claimed sum of $6,138; 14. Invoice 1194v4 (29 June 2018) with the reference 'Lawn variations' for the claimed sum of $473; 15. Invoice 1194v6 (29 June 2018) with the reference 'Rubbish Removal Variations' with the claimed sum of $6,160; 16. Invoice 1194v7 (29 June 2018) with the reference 'Stormwater Variations' for the claimed sum $2,376; 17. Invoice 1194v6 (29 June 2018) with the reference 'Tank Variations' for the claimed sum of $4,180; 18. Invoice 1195 (30 June 2018) with the reference 'Variations Paint' for the claimed sum of $2,750; 19. Invoice 1195v1 (24 August 2018) with the reference 'Variation Inspection Charges, for the claimed sum of $770 20. Invoice 1115 (6 July 2017) bearing the reference '20 Janice' and apparently relating to demolition works, for the claimed sum $1,100; 21. Invoice 1115v (10 July 2017) with the reference 'Swimming Pool Demolition', for the claimed sum of $18,000; 22. Invoice 1119 (13 July 2017) relating to CDC approval, for the claimed sum of $25,500; 23. Invoice 1125 (20 August 2017), relating to piering for house slab, for the claimed sum of $2,598.75; 24. Invoice 1127 (6 September 2017), relating to the 'base stage' of the work, for the claimed sum of $18,000; 25. Invoice 1125v2 (8 September 2017) concerning what was described as the external dropedge beam (30m), for the claimed sum of $18,000; 26. Invoice 1195v2 (4 September 2018) referenced 'Building Material' for the claimed sum of $92,000. 1. The combination of the totals for each of the individual invoices yielded a sum owing in an aggregate sum of $220,624.25. 2. Among other documents in (pp 55-57 of Mr Mehndiratta's affidavit; also Exhibit A, pp 53-55 incl) are what purport to be variations, in the form prescribed by the Housing Industry Association. From the handwriting, they appear to have been dated 5 July 2018. They purport to bear a signature by one of the owners – apparently Mr Barai. 3. At p 35 of Mr Mehndiratta's affidavit there is the following document: "Agreement Porcelain tiles in living area has to be done by the builder but I requested Builder to do tiling in whole ground floor , I (Pankaj) will pay variations on Tiles cost and installation of tiles including material and labour which will be twenty five dollars ($25) per sq m as the allowance is only $25 for installation and $35 per sq m for tiles cost besides Living area and no Carpets to be done Tiled and waterproofed lightweight timber balcony as per plans by the builder Skirting tiles to other than shower, Ceramic tiles to front porch will be done by builders" Mr Barai admitted applying his signature under his typed name and inserted the date 20 April 2018 alongside. 1. At p 37 of Mr Mehndiratta's affidavit, there is the following document: "Agreement: As per the Tender Conditions below Porcelain tiles in Living area only and Carpet in all other areas and rooms (Tiles and Carpet as per Robust Builders choice) – Customer insisted on tiles all over ground floor – Estimate will be provided after calculation. Tiled and waterproofed lightweight timber balcony as per plans Skirting tiles to other than shower Ceramic tiles to front porch 1.9m high tiles to shower perimeter & 1.2m high tiles to bathroom & ensuite with skirting tiles to WC and laundry I Pankaj Barai is has agreed upon as follows I requested Builder to do tiling in all bathrooms up to the ceiling with Cornices on the top. Owner (Pankaj) will bear the cost of tiles, material and labour charges more than 1.9 m high tiles to shower perimeter & 1.2m high tiles to all bathrooms." Mr Barai agreed that he applied his signature (above his typed name) and inserted the date (20 April 2018) Other documents 1. Although I refused Mr Mehndiratta the opportunity of serving further evidence in response to the Owners' claim or in reply to the Builder's claim (beyond what was contained in Exhibit B), that ruling, in its context, was to do with affidavit or opinion evidence; and the Builder was permitted to tender other documents, being business records of the builder, and Mr Mehndiratta cross-examined either or both of the owners on some documents. 2. On 26 June 2017 (9:00pm), Mr Barai emailed Mr Mehndiratta (Exhibit Z). He appeared to have alluded to a demand that he pay the sum of $11,000 on that day but indicated that he was confused by the 'Tender and the Contract'. He asked that after the builder completed "the Demolition," he send the invoice to the owners. 3. On 31 July 2017 (5:54pm), Mr Barai emailed Mr Mehndiratta (Exhibit DD) in which he referred the latter to a document (apparently relating to Kurmond Builders) concerning Actron Ducted Air-conditioning which, to Mr Barai's mind was "included with no extra cost". He asked Mr Mehndiratta to "add this to the Tender." This was relevant to invoice 1150v. 4. On 18 September 2017 (at 8:36pm), Mr Barai emailed Mr Mehndiratta (Exhibit JJ). The email attached a spreadsheet prepared by Mr Barai (Exhibit Y). Notwithstanding that Mr Barai did not recollect emailing that attachment, the parties agreed at the hearing that he had done so. In the covering email, Mr Barai explained that in his view, the owners were obliged to have paid $72,000 (representing what in his calculation was 15% of the purchase price) and had already paid $61,000 and Mr Barai felt that another $11,000 was owing at that stage, although he wanted to speak to Mr Mehndiratta about that as he was confused. 5. On 26 February 2018 (12:44pm), the builder (through Sanya Devi) sent to both defendants an email requesting payment of a 'couple of invoices pending'. 6. On 1 March 2018 (5:54pm), Mr Barai sent an email to Mr Mehndiratta (Exhibit NN). Although he did not recall doing so when giving evidence under cross-examination, the parties agreed that he had attached to that email a spreadsheet (Exhibit OO). The spreadsheet appeared to set out Mr Barai's record of payments made for the first three stages (including the deposit) to the Builder. 7. On 28 March 2018 (12:02pm), Mr Barai emailed Mr Mehndiratta (Exhibit LL). In the email, Mr Barai asked Mr Mehndiratta for a refund of what the former considered was an 'excess amount' the Builder had been paid for the last progress payment, which he calculated was $7500. He asked for this "as early as possible because I'm hard up at present." During his cross-examination, Mr Barai clarified this as being a reference to him (the owners) being short of cash at that time. 8. On 4 April 2018 (1:21pm), Mr Mehndiratta, a person called 'Naser' sent an email (part of Exhibit S) to both owners referring to missing side fences on the property. 9. On 7 April 2018 (11:05am), Ms Mahjabeen emailed Sanya Devi (Exhibit P) to express concern about the removal of the temporary fence at the front of the property. 10. On 7 April 2018 (11:27am), Mr Mehndiratta effectively sent a reminder email (also part of Exhibit S), with reference to Naser's email on 4 April. 11. On 7 April 2018 (at 11:59am), Mr Mehndiratta sent an email (Exhibit Q, and also part of Exhibit W), addressed to the email addresses of both of the owners, to provide them with advice about certain items in the contract, relating to tiles for the bathrooms and ground floor, the use of a timber floor for the first floor, the number of doors for the main bedroom and a locker. At the conclusion of the email, he reminded the owners that if they wanted the Builder to amend or change anything, all variations needed to be paid upfront; and after noting that "these hiccups are delaying the project" he added that "we cannot proceed further without your approvals." This was relevant to invoice 1167 12. At 12:06pm on 7 April 2018, Ms Mahjabeen responded to the emails of 4 and 7 April 2018 regarding the missing fences. She said that there was no fence at the front before and indicated that she and her husband would need to speak to him (and Sonya) regarding side defences. She added in the email that: "Regarding all variations or anything we need to sit nd (sic) talk pls …. see us and call Pankaj… to get to a positive outcomes." 1. On 15 April 2018 (10:32am), Ms Mahjabeen emailed the builder, addressing her message to Mr Mehndiratta (Exhibit KK). The photo in the copy of the email was obscure, and Mr Mehndiratta explained to the Court that he was bringing the document to the attention of the witness (Mr Barai – not Ms Mahjabeen, the author of the email) for the purpose of considering what was written underneath the photo. In the email, Ms Mahjabeen asked Mr Mehndiratta to inform her the allowances for 600 by 600 porcelain tiles. 2. On 25 April 2018 (at 8:43am), Mr Mehndiratta sent an email to Mr Barai in which he attached an invoice 1167 ($16,890). This related to Variations for Tiles for Ground Floor and up to the ceiling. Mr Barai sent an email back to Mr Mehndiratta the next day (26 April 2018, at 7:59am), indicating that he did not have any money to pay the Builder but asserted that the Builder had been overpaid by $7500 for the last payment (the emails are both contained in Exhibit MM, but are also contained as part of the bundle for Exhibit W). 3. On 29 April 2018 (7:19pm), Ms Mahjabeen emailed the Builder (part of Exhibit W). By this email, she indicated that she would transfer payment of $5,000 to the Builder's account within 15 days (or before for tiles) and asked the Builder to commence the work. On 4 May 2018, Mr Barai and Mr Mehndiratta exchanged multiple emails (part of the bundle of emails comprising Exhibit W), but even then the email thread appeared incomplete. At 10:22am, Mr Mehndiratta queried Mr Barai as to which tile he was talking about. At 10:24am, Mr Barai effectively messaged Mr Barai telling him that having expressed his opinion, he would defer to Mr Mehndiratta. At 10:29am, Mr Mehndiratta wrote that the builder was awaiting the (owners') outstanding payments and asked that they pay ASAP. At 10:33am, Mr Barai emailed back, asserting that Mr Mehndiratta had given the owners until 15 May 2018 to pay $5000 and effectively asked him to show patience. These emails were also relevant to invoice 1167. 4. On 1 June 2018, Ms Mahjabeen sent an email to Mr Mehndiratta (Exhibit T). It is argumentative in tone, indicating that she was not going to negotiate anything in relation the kitchen, bathroom and stairs design. 5. On 12 June 2018, a person by the first name 'Naser' sent, on the Builder's behalf, an email (Exhibit W) to Mr Barai in which a demand was made for 'pending payments'. Attachments to that email were invoices 1115v (swimming pool demolition), 1118v (LSL), 1149v (Metal Screen), 1150v (AC), 1167 (Tiles), 1167v (Lights & Intercom) and 1193v (Driveway & External steps). The Owners' evidence Mr Barai's evidence 1. Mr Barai deposed to receiving invoices 1115, 1130, 1127, 1119, 1193v, 1149v and 1150v, but disputed receiving the others which Mr Mehndiratta asserted had been sent to the owners. It is convenient to consider his response to each of these categories in turn, in the way that Mr Barai had done in his affidavit. Mr Barai's position in relation to the invoices he says were received 1. In relation to invoice 1115, Mr Barai deposed to receiving a verbal request by Mr Mehndiratta for an additional sum to complete demolition. Mr Barai deposed to the negotiated sum ($11,000) being paid on two occasions, being 10 and 14 July 2017 ($6,000 and $5,000, respectively) and annexed to his affidavit (Annexure J, pp 66-67) was an email confirming that payment arrangement. 2. In relation to invoice 1130, Mr Barai pointed out that the invoice indicated that this was for a progress payment. Mr Barai also observed that the bank had transferred to Mr Mehndiratta the sum of $146,320 on 17 October 2017 (after being supplied with a progress claim certificate). This left a balance of $6680. As to the balance, he deposed that he made a cash payment to Mr Mehndiratta in the amount on 24 October 2017 when attending the property and so considered that there was no further liability the payment for that invoice. 3. In relation to invoice 1127, Mr Barai noted that this invoice concerns works with respect to the 'base stage'. He deposed that between 2 and 19 September 2017, he had attended to making payments, consistently with the progress payment schedule, with respect to the base stage and no monies were outstanding. 4. In relation to invoice 1119, on 17 July 2017, Mr Barai received an email from the site supervisor; which attached to invoices (numbered 1118 and 1119), both with respect to obtaining CDC approval. Both invoices were for the sum of $25,500, totalling $51,000. The email indicates that Mr Barai had already paid the sum of $45,000 towards both invoices; leaving a balance of $6,000 both invoices. Mr Barai deposed to having a conversation with Mr Mehndiratta in about the middle of July 2017 when he provided him with a $5,000 cash payment. Mr Barai deposed to indicating that this sum was to be made towards the CDC approval and that Mehndiratta agreed that. On the basis of that conversation, Mr Barai asserts that he owes no further money with respect to invoice 1119. 5. In relation to invoice 1193v, the invoice on its face, referred to payment for further tiles and the provision of dual staircases. But according to Mr Barai, the dual staircases were included as part of the works in the tender and, as such, was covered under the $160,000 cost referred to in the tender which the owners considered they had paid. To the extent that the invoice related to tiles, Mr Barai accepts having a conversation with Mr Mehndiratta when he indicated that he would agree to the price of $115 per square metre of tile being installed but deposed to not having been advised as to any specific amount owed with regards to the tiles supplied or installed. 6. Under cross-examination, Mr Barai estimated that there were about 40 LED lights. He said that even though he did not authorise these, he believed that this was included gratuitously by the builder as part of the latter's (pre-contractual) promise to give the owners "something more." 7. In relation to invoice 1149v, which related to the installation of metal screens on the windows, Mr Barai deposed that Mr Mehndiratta indicated that he could disregard this particular invoice. On that basis Mr Barai deposed to not paying it. 8. in relation to invoice 1150v, Mr Barai considered that this invoice concerns works already covered under the tender. He deposed to having a telephone conversation with Mr Mehndiratta told not to worry about this invoice. Mr Barai's position with respect to the invoices he says he did not receive 1. Regarding the balance of the invoices, Mr Barai deposed to not having been requested to pay them. 2. Mr Barai deposed to not having been provided with the following invoices: 1125v2, 1195, 1125, 1167v, 1195v1, 1194v8, 1194v7, 1194v6, 1194v4, 1194v5, 1194v2, 1194v3, 1194v1, 1193v12, 1193v11, 1115v. 3. With reference to invoice 1125v2, Mr Barai attached bank records which indicated that he had paid the sum of $18,000 for works which were described in this invoice on 22 and 27 July 2017. He deposed to not receiving this invoice before seeing Mr Mehndiratta's affidavit. 4. With reference to invoice 1195, this invoice referred to painting services. Mr Barai denied ever having received it. He deposed to receiving an invoice from a painter on or about mid-June 2018, which his bank records indicated that he had paid for. 5. With reference to invoice 1125, Mr Barai deposed to his recollecting that he had seen an invoice bearing that number in late August 2017. It related to piering. He recalled that this was in the sum of $4,207.50 and his bank record proved that he paid it. This invoice purported to be the same, with regard to the length of the slab. 6. As to invoice 1167v, Mr Barai denied receiving this invoice until Mr Mehndiratta commenced this proceeding. It pertained to the installation of an intercom system and LED lights at the property. But he said he never authorised the installation of lights. As to the intercom system, the installation of that system was referred to under the tender. 7. With reference to invoice 1194v, Mr Barai again denied receiving this invoice. He asserted that it did not pertain to any works covered by the contract, the tender or the agreed variations. 8. With reference to the balance of the invoices, 1193v11, 1193v12, 1194v2, 1194v3, 1194v4, 1194v5, 1194v6, 1194v7 and 1194v8, Mr Barai asserted that the invoices concerned works that were included in the contract and tender. He deposed to not receiving these invoices and asserted that if he had, he would have advised Mr Mehndiratta of this position. Features of Mr Barai's cross-examination 1. Mr Barai was referred to Exhibit DD. Asked why he sent the email when the subject matter (air conditioning) was already in the inclusions list for the contract, Mr Barai explained that he was reminding Mr Mehndiratta of this. 2. He was referred to (Exhibits Y & Z). Mr Barai said that the thread of emails was incomplete. He recalled Mr Mehndiratta claiming a sum of $20,000 for demolition of the pool. Mr Barai said he believed that this was part of the inclusions in the Tender (item RB 21 in the tender in Exhibit 1). Nevertheless, in good faith, he said that he paid $11,000. He wanted the work completed. 3. Mr Barai was also taken to paragraphs 68-69 of his affidavit, which concerned metal screens and invoice 1149v. He accepted that metal screens were not included in the 'post contract variations' list (Exhibit 1) on 20 November 2016. 4. In re-examination, Mr Barai was referred to spreadsheets that he had attached to two emails (Exhibits Y and OO). He could not explain why he had inserted the figure of $480,000 in both emails. 5. Mr Mehndiratta referred Mr Barai to the bundle of invoices in the former's affidavit (pp 60-85) when cross-examining Mr Barai. Mr Barai reaffirmed what he had deposed to in his affidavit that he did not receive most of the invoices in that bundle. Ms Mahjabeen 1. In her affidavit, Ms Mahjabeen denied that she and Mr Barai were ever in arrears with payments and deposed to never receiving any list of purported payments which were outstanding. She deposed that Mr Barai received the invoices and was responsible for making the payments. 2. Ms Mahjabeen said in her evidence that during the construction period, she did not 'demand' any changes to the scope of the works. She also stated her belief that she and her husband had received false invoices from Mr Mehndiratta. 3. She was referred to a document which appeared at p 36 of Mr Mehndiratta's affidavit. On its face, this document purported to indicate Mr Barai's confirmation of receiving a range of documents. She said that although she recognised a signature (ie Mr Barai's) she did not recall seeing it signed (on 20 February 2018). (As indicated, Mr Barai agreed that he signed this document). 4. Ms Mahjabeen said that with one exception, as far as she was aware, there were no other approved variations beyond those which had been agreed on 20 November 2016. The one exception concerned tiling in the bathroom and the floor downstairs. She believed that tiling had already been included as a variation, but around May 2018, Mr Mehndiratta said he required payment, in cash, for the sum of about $15,000; but recalled that this was later negotiated down to the sum of $5,000 or $6,000. Submissions The Builder's submissions 1. Mr Mehndiratta submitted that he had provided everything that the owners had wanted. He said his evidence about what he claimed should be believed: he had demonstrated his credibility by his refunds to the owners. 2. Mr Mehndiratta submitted that after 20 November 2016, the owners indicated that they wanted more things added. He cited an email (Exhibit RR) on 21 November, regarding s 149 of the Environmental Planning and Assessment Act 1979 (NSW). 3. He accepted that progress claims that were made had been paid. When he began pursuing them for unpaid invoices between May and June 2018, they sought to delay and complained about financial hardship. He granted some latitude in a spirit of co-operation. But when he pressed them further, they started to complain about the condition of the property and the state of the works. On 16 July 2018, Mr Barai emailed him, indicating that he would pay all debts due in exchange for getting the occupation certificate. 4. Mr Mehndiratta referred to Mr Barai's evidence about cash payments being made to him. He submitted that Mr Barai's evidence was not substantiated by documents. The owners' submissions 1. In his closing address, Mr Lambley initially conceded that a variation had occurred in relation to tiling, relating to invoice 1667 for $16,890. But Mr Lambley withdrew the concession and argued that the position was that tiling had in accordance with the Post-Contract Variations part of Exhibit 1, provision had already been made for the tiling requirement, including payment of $6,000. Based on Mr Barai's evidence (especially paragraph 66 of his affidavit), and what he said about a verbal agreement with Mr Mehndiratta, the $5,000 cash payment Mr Barai made discharged the owners' obligation for this variation. 2. The only other invoice which Mr Lambley addressed the Court about concerned invoice 1149v. About this, he noted that Mr Barai had acknowledged agreeing to pay $1,500, but said he was not obliged to do so given that Mr Mehndiratta had told him that payment could be deferred. 3. Mr Lambley accepted in closing address that Mr Barai was authorised to approve claimed variations on behalf of Ms Mahjabeen. Consideration 1. Although his recollections of events so long ago were by no means infallible, Mr Barai's evidence about what invoices were supplied to him and what he paid is, to a large degree, supported by contemporaneous documents such as bank payments and emails. 2. As a general rule, Mr Mehndiratta's evidence on the subject of the invoices, by contrast, suffered from generalised assertions which, by and large, were not supported by supporting documents and depended, for their acceptance, on the Court's assessment of his credit and reliability as a witness. In view of my credit findings, this presented a significant obstacle to Mr Mehndiratta. 3. There is some force in Mr Mehndiratta's point that Mr Barai did not substantiate, by reference to banking or other records, instances where he said he had made cash payments. But the instances where Mr Barai had given this evidence were few in number and, as indicated, I have generally found Mr Barai to be a credible and reliable witness. The force of Mr Mehndiratta's submission is also reduced in circumstances where it was open for him to have requested from the owners' solicitor or, if necessary, have served a notice to produce upon Mr Barai for any document to substantiate cash payments asserted by Mr Barai in his affidavit, followed by proof that Mr Barai was unable to substantially respond to such process by producing such documentation. Mr Mehndiratta did not do so. 4. Fundamentally, Mr Mehndiratta did not engage with Mr Barai's evidence on each of the many invoices. To some, very limited, extent the deficiency is redressed through the additional documents he tendered in the builder's case and through certain things said by the owners when they gave evidence which I regarded as unconvincing. 5. Generally, I am not persuaded by the Builder's case in relation to the invoices. 6. First, some of the invoices (numbered 1130, 1127) related to progress payments, which was contrary to the way that the Builder put its primary case (invoice 1195v2 relates to the claim in detinue considered in the next section of these reasons). 7. Secondly, some of the invoices (1130, 1119, 1125v2, 1125, 1195) were, as proven by Mr Barai, paid. In the case of invoice 1119, I accept Mr Barai's evidence that after a first instalment ($45,000) was paid to the Builder, the Builder agreed to accept the remaining sum ($5,000) in satisfaction of the invoice. 8. Third some of the invoices (1115, 1193v, 1150v, 1193v11, 1193v12, 1194v2, 1194v3, 1194v4, 1194v5, 1194v6, 1194v7, 1194v8) the builder did not prove that these claims went beyond the inclusions in the contract and Exhibit 1. Further in relation to 1115, there was contemporaneous email correspondence (Exhibit 2) supporting Mr Barai's evidence about an agreement to pay a lesser sum ($11,000). 9. Fourthly, I accept Mr Barai's evidence that with the exception of invoices 1167v and 1115v, it was not demonstrated that the invoices had been sent to the Owners, in compliance with the contract. 10. Fifthly, on its face, each of the documents appearing at pp 55-57 of Mr Mehndiratta's affidavit were forms for variation associated with the Housing Industry Association form of contract. They purported to indicate variations on 5 July 2018 approved by the Owners. There were no totals on any of the invoices. When Mr Barai was referred to these three purported variations in his evidence, he denied signing (and therefore approving) the documents. I accept his evidence. Thus, consistently with the requirements of cl 13, these variations of 5 July 2018 did not comply with the requirements for variations and have no evidentiary value. 11. Exceptions to this are as follows. 12. Contrary to Mr Barai's recollections (in paragraph 72 of his affidavit), I find that the Builder had sent to the owners the invoices numbered 1167v ($14,410) and 1115v ($18,000). These were annexed to the email 12 June 2018 (part of Exhibit W). 13. In relation to invoice 1167v ($14,410), I do not accept the owners' position that the approximately 40 LED lights satisfied the "something extra" promise that Mr Barai asserts that Mr Mehndiratta made in September 2016. That was promise without content. As is implicit in Mr Barai's evidence, these were not already included within the tender. There is no question that this invoice was not paid. The builder's claim in relation to this invoice is made out. 14. In relation to invoice 1115v ($18,000), this was an exceptional instance where Mr Barai did not provide a reasoned explanation for why he did not arrange for its payment (beyond saying that he did not receive it). The owners did receive it when it was emailed to Mr Barai on 12 June 2018 (Exhibit W). I do not accept the correctness of Mr Barai's belief, articulated under cross-examination, that this was included within Exhibit 1. The reference in RB 21 of the Tender (in Exhibit 1) was ambiguous. The builder's claim in relation to this invoice is made out. 15. In relation to invoice 1167 ($16,890), this was the most contentious of the invoices in dispute. Originally, in Exhibit 1, tiling up to the ceiling had been provided for (for the sum of $6,000). But Ms Mahjabeen accepted that subsequent to 20 November 2016, the owners' requirements had changed. This was illuminated by the documents which Mr Barai admitted signing on pp 35 and 37 of Mr Mehndiratta's affidavit. The invoice was rendered on 25 April 2018 and the email correspondence that shortly followed from that event revealed attempts by the owners to negotiate a reduced price, including a suggested figure of $5,000. But although there was an indication that there was negotiation and agreement to pay that sum to the builder, I am not satisfied that the Builder accepted this sum in full satisfaction of the invoice rather than reflecting a temporary accommodation to the owners (then) difficulty in paying the full amount. However, I find on the probabilities that the sum of $5,000 was paid to the Builder and this amount needed to be credited to the owners. I therefore find that the Builder has partly made out its claim under this invoice, but the quantum of payment is reduced from $16,890 to $11,890. 16. In relation to invoice 1149v ($1,500), I do not accept Mr Barai's evidence that the Builder agreed to fix up the accounts later or, alternatively, that the Builder had abandoned this claim. 17. I find that the Builder is entitled to judgment on the debt claim under the contract for the sum of $45,800. Claim in restitution for works performed 1. As to the builder's alternative cause of action in restitution, its position is not improved. Such action is not founded upon any suggested lack of enforceability in the contract. The matters pleaded at paragraphs 17-20 of the Amended Statement of Claim do not substantively add anything by way of new facts to the contract claim and really only state facts in a way intended to capture the somewhat abstracted formulation of an action for unjust enrichment. As the plurality observed in Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 at [19]: "In circumstances where [the respondent] has enforceable contractual rights to money that has become due under the contract, there is no room for a right [in the respondent] to elect to claim a reasonable remuneration unconstrained by the contract between the parties." 1. Further there is no evidence of value for the work done which is distinctive of the builder's cost. The claim in detinue for items not returned to the Builder The Builder's evidence 1. Mr Mehndiratta deposed further that in or about July 2018, when payment was not received, he was forced to exclude Mr Barai from the property until payment was made. However, Mr Mehndiratta that he "relented" from this position when, on or about 25 July 2018, he was invited by the defendants to a Muslim celebration at their home and Mr Barai said he needed the keys to the house for that purpose. Mr Mehndiratta believed that Mr Barai copied the keys (without the former's approval) and changed the locks and bringing all the items into living in the home without paying the builder the remainder of the money due. 2. Mr Mehndiratta deposed that around early August 2018, he attempted to gain access to the property to retrieve his belongings. However, he deposed that he was refused entry and police were called. He deposed that he had been using the garage to store tools and equipment (for other builds). Annexure RB 3 to Mr Mehndiratta's first affidavit were photographs of security cameras installed on the property that, in his affidavit, he asserted showed minor items left "at the end of the build". However, during the hearing, Mr Mehndiratta indicated that he meant to say that these items were those of the owners and the point of the reference was to prove the owners habitation within the property at the time the photographs were made (as well as their installation of security cameras). 3. On or about 4 September 2018 (after he commenced this proceeding), the Builder issued an invoice (1195v2) in which a claim was made for 'building material' was made on the owners for the sum of $92,000. I note in the description part of the invoice there was no specific delineation of what was meant by 'building material' or "our valuable belongings." The Owners' evidence 1. In his affidavit, Mr Barai denied that there was any substantial equipment belonging to Mr Mehndiratta in the Owners' garage when the Builder ceased performing. There was only 'rubbish and miscellaneous items,' which remained on the property. Mr Barai annexed to his affidavit some photos depicting the material left on the property. 2. Mr Barai denied that there was any equipment stored in his garage by Mr Mehndiratta; although there was a certain amount of rubbish (which he deposed was still located in his garage). He observed that he had not received any list of items of property. On 16 August 2018, Mr Barai emailed Mr Mehndiratta, asking him to remove rubbish. 3. Mr Mehndiratta referred Mr Barai in cross-examination to photos attached (pp 86-90) to the former's affidavit. Mr Barai recognised stairs in them and acknowledged that they were photos of his home. The white object that appeared at p 90 was a toy for the family cat. 4. Ms Mahjabeen also deposed that any material left at the Owners' property was 'rubbish.' 5. Mr Mehndiratta did not put on admissible evidence in reply when he had the opportunity to identify items of property the subject of his claim in detinue or their respective values. Submissions 1. Mr Mehndiratta submitted that after being locked out of the property, he had left a stack of tools, an (old) excavator and other things on the property. This submission was not supported by admissible or probative evidence. 2. The owners' solicitor advocate did not address the Court on this issue. Consideration 1. There was no admissible evidence to indicate that equipment or property items of any substantial value remained on the property. No items with substantial value were individually identified. The invoice relied upon was not a business record; generated, as it was, by the plaintiff after the proceeding commenced. [10] The claim for approximately $90,000 for wrongful detaining of the Builder's property is rejected. 2. The discrete action for restitution fails for this reason alone even if there would also be serious doubts whether the asserted taking into possession of personal property could sustain an action in restitution. ISSUES ASSOCIATED WITH THE OWNERS' CLAIM The owners' lay evidence Mr Barai's evidence 1. Mr Barai deposed that he and his wife did host a ceremony of 'blessing' of the property. This reflected Hindu custom. It was about this time, being early July 2018, when according to Mr Barai, he spoke to Mr Mehndiratta and asked the latter for the keys to the property. The gathering occurred on 8 July 2018 and Mr Mehndiratta was one of the attendees. Mr Barai later said under cross-examination that he noticed that stairs out the back were broken. 2. Mr Barai denied that he intended to copy the keys at any time organised the locks of property to be changed. He also deposed (paragraph 28) that by the end of July 2018 the works and still not been completed. 3. Then, in late July 2018, Mr Barai deposed to Mr Mehndiratta presenting him with some paperwork and explaining to him that he needed to sign the paperwork in order to obtain a final occupancy certificate from the private certifier. The effect of Mr Barai's evidence was that Mr Mehndiratta pressured him and his wife into signing the form by representing that the private certifier would soon be travelling overseas. 4. Mr Barai also deposed (paragraph 29) that in late July 2018 (and after the latter event), Mr Mehndiratta informed him that he needed to pay for the Home building insurance; following which he would bring the occupancy certificate with the keys to the property and signed copies of the documents that he and his wife had sign in order to obtain the occupancy certificate. Later in his affidavit, Mr Barai deposed that he did not know whether any inspections had been conducted, had no knowledge of what the occupancy certificate said until he received it from the private certifier in early August 2018. 5. In his cross-examination by Mr Mehndiratta in relation to paragraphs 28 and 28 of his affidavit, Mr Barai explained that by then, he and his family were renting in another property at Seven Hills (which he identified as the Barbara Boulevarde) and he had already procured three extensions on the lease over the property he and his wife were living in and that they had been warned that there would be no further extensions. He was affected by Mr Mehndiratta's assurance that he could provide the keys to he and his wife within a matter of days and indicated that he and his wife feared having to live on the street. Mr Barai also said that he paid for the home building insurance which Mr Mehndiratta demanded that he pay. 6. Mr Barai deposed (paragraphs 30-32) to chasing Mr Mehndiratta for the keys and copies of the occupancy certificate but that Mr Mehndiratta had subsequently explained that he would not hand over the keys in circumstances where Mr Barai had not paid him for the rest of the works. He said in his evidence under cross-examination that he repeatedly called Mr Mehndiratta since he expected the latter to hand over the key. 7. When Mr Mehndiratta indicated that he would not hand over the key, Mr Barai signalled (paragraph 34) his objection to that matter and foreshadowed that he would speak to NSW Fair Trading. In early August 2018 this is what Mr Barai deposed (paragraph 35) that he did. 8. Mr Barai explained that by early August 2018 (and not before), he and his family were required to vacate their rental property. But since they had been unable to locate any alternative rental property, they decided to move back into their home. He estimated that this was on 10 August 2018. He recalled notifying Mr Mehndiratta of this plan in the first half of July 2018. Asked how he was able to access the property, Mr Barai said that the garage door was faulty and partially open. 9. On 14 August 2018, Mr Mehndiratta emailed Mr Barai (and copied the email, amongst others to Mr Nicolson from NSW Fair Trading), in which he complained about the Owners having 'broken in' to the property despite not being given the keys and despite his assertion that payments over $200,000 had not been paid. 10. Mr Barai responded to this email on 16 August 2018 in which he complained of the quality of the work, about the Builder taking the final progress payment from the Bank and asking Mr Mehndiratta not to harass him anymore. Addressing Mr Mehndiratta's point in the latter's email of 14 August, Mr Barai asserted that he was the owner of the property and indicated that if Mr Mehndiratta entered the property "with (sic) my permission then it will be trespassing". 11. On 24 August 2018, Mr Christopher Nicolson, a Senior Building inspector from NSW Fair Trading, attended the property. One week later, Mr Barai received an email from Mr Nicolson, attaching a rectification order. That document, notably, referred to a contract being signed by the owners on 24 September 2016. 12. On 31 August 2018, Mr Nicolson reported on his inspection of the property. In a rectification order prepared on the same date, he designated the property as being incomplete. He did not, however mark the boxes within what appeared to be a prescribed form which designated the work done by the contractor as 'defective' or that the work had 'caused damage to a structure or work.' The Order set the date of 24 September 2018 for completion of the works. One of the conditions to the order was that the owners were to provide the Builder reasonable access to the site. Mr Barai said he had provided a list of issues, but did not otherwise accompany Mr Nicholson for the two hours or so that the latter conducted the inspection. In re-examination, Mr Barai said that the issues he had identified did not include anything about insulation in the roof since he was not aware of that problem at the time Mr Nicholson completed the investigation. He received the rectification order after this proceeding commenced. 13. Mr Barai deposed (paragraph 41) that on 10 September 2018, Mr Mehndiratta threatened him and his wife that if they did not pay the outstanding amount then property would be broken into. Mr Barai said in his evidence that he omitted to include in his affidavit that Mr Mehndiratta had rung him. Two days later, Mr Barai reported this incident to Blacktown police. He did not adduce evidence of the police's response other than to say that the police advised him to deal with the builder. At 1:42pm on that date, Mr Barai emailed Mr Mehndiratta in which, amongst other things, he warned the latter not to threaten him any more (Barai, p 62). When challenged by Mr Mehndiratta in cross-examination, Mr Barai said that the former had been 'rude' to him many times since 2016. 14. In September 2018, Mr Barai sent multiple messages to Mr Mehndiratta regarding the state or condition of the property. At this time, I observe, the Builder had filed its statement of claim in this proceeding. These messages appeared at Annexures F to H (incl) of Mr Barai's affidavit (pp 61-63). In summary these emails reported or complained of certain matters on certain dates: 1. 3 September 2018: an incorrect installation of gas and water pipes; the gas cook top not working and leaking water in the bathroom basin, the main kitchen sink and the laundry room [11] ; 2. 10 September 2018: flooding garage, faulty water tank, incorrect levelling of the master bed room shower floor, cracking in one of the floor tiles, water not passing through from the floor, the door to the main bath room not being shut or locked. 1. In cross-examination, Mr Mehndiratta was asked Mr Barai why he had hired Mr O'Donnell to prepare an expert builders' report 4 years after the Builder had ceased performing works. His response was that he thought that a complaint to Fair Trading would be sufficient. He also seemed to suggest that because Court directions were made for the provision of expert evidence, this required him and his wife to obtain such evidence. 2. Generally, Mr Barai explained that he had 'Google(d)' a list of potential building experts. Mr O'Donnell's firm (CSI) came up. Mr O'Donnell forwarded him a copy of his resume. 3. Mr Barai was asked in cross-examination whether he had ever hired the entity 'Capital Building Consultants.' He said he recalled paying an initial amount of money but had lost contact with them. In re-examination, however, Mr Barai said he recalled some contact with that firm in the beginning of 2022. He did not recall receiving a draft report even though he was supposed to. He said he tried to contact that firm 4-5 times. It was pointed out to him in re-examination that according to paragraph 4.1(c) of Mr O'Donnell's report, Mr O'Donnell had referred to a draft Capital Building Certificate report being supplied to him by the owners' solicitors. Mr Barai said he did not recall ever seeing a final report. 4. Mr Barai estimated that Mr O'Donnell was at his place for between 6 and 7 hours when the latter was conducting his site inspection on 15 September 2022. He recalled identifying areas of concern, but left Mr O'Donnell to conduct the inspection himself. The areas of concern did not include insulation, which issue was not visible to him. He could not recall whether it was he or the owners' solicitors who provided to Mr O'Donnell the documents identified in Mr O'Donnell's report. 5. Mr Barai said that he arranged for the repairs of some items between (August) 2018 and the present time. He arranged to fix gas installation and dealt with an exposed plumbing connection in the front yard. He referred to a gas stove and installation of the shower. He had no quotes to show, he explained, since he and his wife could not afford them. As noted, however, he had referred to some of these matters in his September 2018 emails. 6. Asked about the current situation when cross-examined, Mr Barai said it is still the case that he is using only two of the four bathrooms and that for all of the four bathrooms there are uneven surfaces. 7. He denied ever 'tampering' with the condition of the building, including removing the insulation and indicated that, as far as he was aware, Mr O'Donnell had not tampered with the condition of the property either. Ms Mahjabeen's evidence 1. In an email that Ms Mahjabeen sent to the Builder (Exhibit V) on 1 June 2018, Ms Mahjabeen set out a number of complaints about "things missing and not being done according to the written contract". The list of items were quite extensive and generally concerned the state of the kitchen (which she implied was not consistent with how Kurmond Builders would construct it), the alfresco area, the dressing rooms and walk in wardrobe, the clothing storage area and issues associated with the main downstairs bathroom and main bedroom ensuite. 2. Mr Mehndiratta brought to Ms Mahjabeen's attention an email she sent to the Builder on 1 June 2018 (Exhibit T), which contained complaints about a variety of issues concerning the works. She was asked why it took until then to complain (assuming that there were no prior complaints). She explained that she could not go inside the property before then and she could not herself personally inspect the premises without her husband as she depended upon his taking her to the property; since she did not have a driver's license. 3. Ms Mahjabeen was shown the document titled 'Comprehensive Handover Inspection Summary,' which appeared at pp 46-54 of Mr Mehndiratta's affidavit. She denied signing this document. (I note that Mr Barai was not asked whether he had applied his signature to this document). 4. Under cross-examination, Ms Mahjabeen recalled moving back into the property in August 2018 and after the owners received an occupation certificate. This was before a report was made to Fair Trading. 5. Ms Mahjabeen said in her evidence, under cross-examination, that at or about the time they moved back in, in August 2018, and prior to the Fair Trading inspection, she said that, to her mind, the defects to the premises included rusting to all the bathroom fittings (she referred to doorframes, shower frames, metal frames and under the sink). 6. She said Mr Barai reported to her the issues he had complained about to Fair Trading in August 2018. Ms Mahjabeen recalled that her husband had reported to Fair Trading (in August 2018) that the garage door was faulty, the absence of a safety fence on the veranda outside the house, the unevenness of bathroom floors, a big hole behind the stove and oven in the wall, the flooding of the water, no (roof) insulation being provided, plumbing issues (exposed gas pipes) and no gas connection given. Ms Mahjabeen said that what Mr Barai reported to that he informed Fair Trading about was consistent with her own observations. 7. She accepted that her husband undertook some landscaping work, but indicated that his occurred only in December 2018 to deal with the rocks and rubbish that were on the property. She said that when she and her husband had their housewarming occasion in July 2018, some of the attendees commented upon this. She said she thought that she had taken some photos of this, but they were not annexed to her affidavit. 8. She was asked whether she had organised repairs to the property. She said she did not do so personally. She recalled that Mr Barai had organised to get gas connected to the property. She said that Mr Barai had removed some rubbish and pebbles in an attempt to make the home liveable. She said that they tried to get drainage fixed but were informed that the task of repairs was difficult. 9. She recalled Mr Barai informing her that he had been threatened by Mr Mehndiratta and of his making a report to the police, although he did not inform her about the content of his report to police. 10. She said that she was present for part of the time when Mr O'Donnell conducted his site inspection on 15 September 2022. She did not recall having any conversation with the expert about what was wrong about the property, in terms of defective or incomplete works. She said she looked at his report. 11. She recalled that her husband tried to contact tradespeople to fix the gas connection and someone to fix the drainage system in front of the garage and the broken fence adjoined to the veranda. 12. Mr Mehndiratta asked Ms Mahjabeen what if any (continuing) issues that the owners had with their property with the bathrooms. She responded that the fittings (door frames and shower frames) were rusty, and the floors were uneven. 13. I asked Ms Mahjabeen why it was not before September 2022 that she (with her husband) engaged an expert to examine for defects. She explained that they had previously tried to get a different builder (Capital Building Consultants) to prepare a report but a report did not eventuate. 14. I also asked her whether she was aware of Mr O'Donnell having previously written a (critical) report about Mr Mehndiratta. She said she did not recall being aware of this. The Builder's evidence 1. Mr Mehndiratta emphasised in his evidence that engineers had certified works and the Owners went into occupation. The owners even conducted a housewarming party. (Mr Mehndiratta says that some partygoers requested quotes from him to assist with their homes). This necessarily meant that the works made the home habitable and proved that the express and implied terms of the contract (relating to due care and skill, merchantable quality etc) were complied with. 2. Mr Mehndiratta annexed to Exhibit B a Final Occupation Certificate dated 3 July 2018, apparently prepared by an entity called Certified Building Specialists. Copies of that document had been sent to Mr Barai and also to the local (Blacktown) Council. Also annexed to Exhibit B an itemised list of occupation certificate documentation, indicating compliances in serial respects (for example and without limitation, glazing shower screens, plumbing services, smoke alarm, stormwater drainage, waterproofing). 3. Further attached to Exhibit B was a 'Residential CDC OC checklist.' This document appeared to reproduce an online document by which different certifiers could manually indicate the status of different facets of the work, including, for example, structural engineering or balustrades, or termite protection. 4. I note that on the face of the checklist, the person identified as being responsible for certifying such things as 'Basix compliance,' 'Building Sealing,' 'Energy Efficiency,' 'Roof Covering' was the Builder itself, either singularly or alternative to some other contractor. 5. In his affidavit (at pp 46-54) and Exhibit A (pp 44-52), Mr Mehndiratta included a typed document he prepared, titled "Comprehensive Handover Inspection Summary", which I referred to earlier. A handwritten annotation (top right hand corner) bears the date 5 July 2018. Underneath, on the bottom of each of the pages of this document are what purports to be the signature of Mr Barai (and Mr Mehndiratta). What follows within the document is a lengthy list of works too voluminous to conveniently set out here. In summary, there are detailed descriptions of works under many sub-headings, including: Site Conditions, Site improvements/conditions, Outbuildings, External, Brickwork, Balcony, Patio, Porch, Veranda, Deck, Carport, Frame, Roof Framing, Roof Covering, Floor, Joinery, Each internal room, Specifically for Kitchen/Meals, Specifically for each Bedroom, Specifically for each Bathroom, Specifically for each toilet, Specifically for Laundry, Specifically for Garage/Carport/Storeroom. 6. Prior to the description of each of these items, this document bears an inscription, in bold: "The below have been thoroughly/comprehensively checked by us/our expert and we are fully satisfied with the quality of work (specifications/ workmanship/materials etc) and any or all changes/alterations at any stage have only been made at our request and to our complete agreement/satisfaction. We fully agreed to pay for all the variations carried out during all stage of the construction work." 1. Mr Mehndiratta deposed (paragraph 10) that five inspections were carried out and they had all approved the work completed. After all this an occupancy certificate was issued which proved (according to Mr Mehndiratta) that the work was completed to specifications. 2. Mr Mehndiratta deposed (paragraph 12) that an inspector from Fair Trading came out and said that the building was "fine". Mr Mehndiratta asserts that although complaints were made about the builder to police and to fair trading, nothing of any (adverse) consequence had befallen the builder. Although there were some minor clean up works to be undertaken, these could not be completed by him since the Owners did not authorise his entry to complete them. 3. He indicated that the rectification order from NSW Fair Trading did not indicate what needed 'fixing.' 4. Other assertions Mr Mehndiratta made (in Exhibit B) were that: 1. a rainwater tank installed on the property was certified by a stormwater engineer and licensed plumber; 2. a hot water system was brand-new and was also certified; 3. there was no pub cove to be provided in the scope of work or inclusions list 4. there was no issue with stormwater drainage system, which was certified by the stormwater engineer licensed plumber 5. the building was fully sealed between the walls, floors and bathroom fittings and was certified by appropriate authorities; 6. grouting was done by experienced tilers, where that was required; 7. all brick walls were acid washed. The windows are not fully cleaned that this was because the owners moved into the property. He could not re-enter the property because he was barred by the owners; 8. the garage door was brand-new and still under warranty; 9. the bathroom floors were done by an experienced tiler and bathroom (and pc) items were installed by a licensed plumber and fitted 10. stairs and floors were installed in accordance with the owners instructions; 11. stairs on the Alfresco and laundry areas were installed 12. the main bathroom door was properly installed by a licensed carpenter and brand-new locks were installed. 1. Mr Mehndiratta also asserted that all the work required by the contract was finished along with various other work which was the subject of the owners instructions or variations. He denied that there was any pending works which require rectification or completion. 2. Mr Mehndiratta also asserted that the materials and services they were supplied conform with what was agreed. 3. Mr Mehndiratta further asserted that Mr Barai was in contact with him for each and every stage of the construction works and never mention any of the issues concerning quality about the material or services supplied by the builder. Other documents 1. Mr Mehndiratta drew other documents to the attention of witnesses called for the Owners. 2. One of these was an undated document titled "Specifications: Robust Builders Pty Ltd" (Exhibit F). 3. Mr Mehndiratta tendered emails passing between the Owners' bank (the NAB) and Mr Barai or Mr Mehndiratta in July 2018. In the first of the emails (Exhibit G) an officer of the Bank (Ms Crawford) indicated that when processing the final progress claim, a final valuer's inspection was being arranged and the Bank requested provision to it of the occupancy certificate. Mr Mehndiratta's email (Exhibit H) indicated that the bank's valuer had already inspected the property the previous week. The email attached a number of documents, including the final occupation certificate (3 July 2018) and a final invoice (1194) purporting to represent practical completion. 4. On 12 July 2018, Mr Mehndiratta emailed to the owners' banker the occupancy certificate and other documents, including invoice 1194 (Practical completion) (Exhibit H). 5. On 15 July 2018 (11:32pm), Mr Mehndiratta emailed Mr Barai, asking him to pay outstanding invoices and reminding the latter that late payment fees and charges could apply if payments were not paid by the due date. 6. On 16 July 2018 (1:53am), Mr Barai responded to this by return email (both emails are part of Exhibit W). This was to agree to pay what was due, and Mr Barai asked Mr Mehndiratta to "hand over the OC. Or I will have to stay on the street as I have to vacate this property by tomorrow." He asked Mr Mehndiratta to "try to understand my situation." 7. On 17 July 2018 (at 9:37am), Mr Barai sent an email to Mr Mehndiratta (Exhibit PP). He was responding to an email (which did not appear to be in evidence) and patently indicated his offence at the suggestion that he had not paid invoices. He adamantly asserted in this email that he was "always ready to pay what we agreed." He also asserted that he had not been given complete invoices: that what the builder had provided were 'incomplete (but) partially correct' invoices. The gist of his email was to ask that they 'sit together and resolve(d)' all dues "with correct invoices and according to the contract." If that did not occur he threatened to report the builder to Fair Trading (and report to his Bank and Insurance). 8. This last email prompted Mr Mehndiratta's response at 7:30pm (also part of Exhibit PP). Mr Mehndiratta indicated he would go through the invoices to determine what had been paid and unpaid and send them through to Mr Barai before the week's end (17 July being a Tuesday). 9. Mr Barai sent a further email in response the same day (7:55pm, also part of Exhibit PP). He indicated that he could wait til tomorrow to "finalize all dues and hand over the OC and keys" (18 July) but was unwilling to extend the time any further: if the dispute was not resolved (by 18 July), he would complain to Fair Trading. 10. Mr Mehndiratta also tendered (certified) structural plans for the construction (Exhibit J) and the Record of Inspection (Exhibit K). The latter document was on the letterhead of 'Certified Building Specialists.' It listed a series of inspections, for different types, occurring in the period from 2 December 2016 to 25 June 2018 (incl). Amongst those types of inspection was one occurring on the last of the dates in this date range. This was the category of 'Final' inspection and the description given to it was 'Satisfactory.' This was made, apparently, by the same accredited inspector who had apparently determined that the earlier Final inspection (21 June 2018) received a 'Not satisfactory' result. Mr O'Donnell's evidence Qualifications and expertise 1. Mr O'Donnell conducted a site inspection of the property on 15 September 2022 and prepared a report dated 26 October 2022 (Exhibit 4). Included with his report was his resume. He obtained a Bachelor of Building (Hons) 2001 from the University of Western Sydney. Before that, amongst other things, he obtained a Carpentry and Joinery Trade Certificate. He said he has an unlimited defendant's contractor license. Although Mr Mehndiratta referred him to a NSW Fair Trading document suggesting that the licence had expired, Mr O'Donnell maintained that his licence was current. When asked about his credentials in cross-examination, he said he had spent 42 years in the construction industry and had been involved in the construction of multi-storied residential and commercial buildings and had also prepared consulting reports for defects. In answer to a question from me, he expressed confidence in also providing the evidence that comes from a quantity surveyor (T 179). He also indicated, under cross-examination, that he had built houses himself, many times before and had supplied a home warranty certificate. The last work he built was his own home in 2022 on a house that was bigger than the owners' home in this case. He added that previously he had issued what is now known as a Home Builders Compensation Fund certificate many times over the last 20 years. 2. Mr O'Donnell appended a voluminous Scott Schedule (Appendix 1) and Site Inspection Report Record (Appendix 2). The Site Inspection Record comprised 75 pages. 3. As to the Scott Schedule, for the purpose of costing of items, Mr O'Connell generally relied upon labour and material rates taken from Rawlinson's Pricing and Costing Handbook (2022 edition). Mr O'Donnell's opinion as to defective works 1. In section 3 of his report, Mr O'Donnell generally found that the construction works did not comply with the contract tender, or planning requirement for the development consent. Major defects were evident where the ensuite leaks (in the main bathroom, ensuite, ensuite 2 and laundry). There was no fall to the waste. These attracted the statutory warranty under s 18E of the Home Building Act. The shower recess was leaking. There were also multiple poor workmanship minor defects, breaching the statutory warranty in s 18B of the Home Building Act. 2. Specifically, Mr O'Donnell summarised (paragraphs 3.7- 3.22 of the body of the report) the following items of defective work (whose findings were more fully detailed in section 8 of the report under the heading 'Inspection Findings'). There is a general, although not necessarily complete, correspondence between the sequence of those findings and the reference to items in the Scott Schedule. Many of these were challenged by Mr Mehndiratta when the latter cross-examined Mr O'Donnell. A summary description of the defect, the applicable item in the Scott Schedule and Mr O'Donnell's evidence in response to the challenges under cross-examination, are (respectively) as follows. 1. (item 1) Roof flashing seating and flattening has not been undertaken and 'could allow' water into the roof cavity. Mr O'Donnell explained that the flashing was not seated or stepped and there were big gaps through which wind-blown water could pass through. The circumstance flashing not being seated created a risk of long term damage. Lead was installed but not seated correctly under the roof. He disagreed with the hypothesis that the lead could have been tampered with: some 'tamperer' would not cut it out of line. There would be a straight line; but in this case, there was no straight line. 2. (item 2) Eaves, sagging and trims were missing. Mr O'Donnell said the trims were not done properly. He rejected the hypothesis that the item could have been tampered with, such as by the use of a screwdriver; explaining that he would expect to see nail holes if this was the case and he had not seen them. 3. (item 3) Insulation and sarking: Mr O'Donnell accepted that it was possible that in the four years between the builder last being on the works and Mr O'Donnell's report, someone could have physically removed the insulation, but thought that was highly improbable. But he derided the hypothesis that this could have been tampered with. If it had been, he explained, he would have expected to see remnant of fluff (unless the tamperer had the foresight to use a vacuum cleaner). He believed that there was no evidence of insulation at any time in the ceiling cavity between the joists. 4. (item 4) Condition of the ceiling. Mr O'Donnell was challenged as to his view that the shower membrane leaking into the ensuite to the main bathroom but he maintained that it has failed: it was no longer sealing the floor under the tile screed, but leaking along the joints of the timber in and around the drain under the shower. Mr O'Donnell rejected the suggestion that silicone or membrane from the tiles could be taken off with a knife or screwdriver because in this case, the membrane was underneath the tiles and then underneath the tile screed. There was no evidence of holes in the floor from underneath. He was able to access the area by taking photos from a down light fitting; to enable him to observe the floor area under the shower to see the water damage and penetration. 5. (item 6) Windows have plastic, reducing the allowable light to the rooms 6. (item 7) External doors have no weather-strips, allowing water in the building. When challenged about the strips being installed, Mr O'Donnell repeated that this was a requirement under the NCC 2016 (Part 2.2). He also indicated that there were 2 external doors. 7. (item 8) Floors: Mr O'Donnell was challenged about his opinion that 'wrong flooring' had been installed. He believed that the builder was required to apply a solid timber floor as part of the variations for the upper levels (except for the stairs). He referred to the post-contractual variations document (Exhibit 1) and the provisional sum to upgrade the laminated timber flooring and there was nothing to suggest that this had been removed. 8. (Item 9) Kitchen cooktop and oven wiring was installed with large gaps; thereby allowing access for rodents. Mr O'Donnell was challenged on this opinion. He was not a licensed electrician. But he said that he saw holes around the wiring at the rear of the cabinet, at the rear of the cook top and these were excessive. They should have been rectified to stop the movement of rodents in and around the kitchen. This had nothing to do with wiring. He referred to his photos at p 33 of the site inspection report. Asked whether it was possible that the gaps were made after the Builder ceased works, Mr O'Donnell said no. In particular, the top hole indicated that a drill had spun off and had busted the back out. The holes were made at the time of installation as pipe went through the holes. Given the location of the holes it is unlikely that malicious damage was caused afterwards. 9. (Items 10-13) Main Bathroom, Ensuite, Ensuite 2 and Laundry. A cheaper framed system was installed for the shower screens when the requirement was for the screens to be frameless. This had been detailed in the Diamond Premium Inclusions document (Appendix 6) and the 'Façade Option' in the tender found Exhibit 1 (also located at Appendix 4 to Mr O'Donnell's report). Mr O'Donnell considered that the former matched the requirement in the latter. There was no fall to the waste. The fall required (by AS 3740) was 1:80 or, for wet areas 1.100. Mr O'Donnell was asked whether he took any video film of the falls. He said he had and the photographs were reproduced (pages 35 and 37 of his site inspection report). It was suggested that all of his readings were '0' but Mr O'Donnell said that this was not so (the photo at page 35) indicated a reading of '3' (mm in a metre). Mr O'Donnell added that the correct number was 10 (mm in a metre). It was also suggested that he may have conducted his measurements on the part of the floor where there was dust or dirt but Mr O'Donnell denied that this was so. He accepted, generally, that if the fall was insufficient, this was an indication that the screeding was not correct. As to the photos in his report associated with the Bathrooms (within paragraphs 8.16 – 8.39 (incl)), Mr O'Donnell indicated that he had been instructed by the owners that the Builder was to provide Premium Inclusions (set out in Appendix 6 of his report). (also items 10-13) Vanities: there was no edge seal so that water could damage the cabinet backing board. Asked what he had done (item 10) to ascertain that there were no falls in the floor, Mr O'Donnell said that he had run the taps and the shower and observed what occurred. They he levelled the floors. He measured the falls and there was nothing: no fall in the shower at all. Similar issues were associated with Item 12. In both cases, falls were non-existent and there was leaking into the ceiling below in the ensuite. The water was exiting the room into an adjacent area. 1. (Item 16) External wall: AS 3700-2011 required flexible sealant to control joints. 2. (Item 17) Lintels: there was poor workmanship mortar covering them. 3. [item 18] Mr O'Donnell was challenged about his opinion that storm moulds that needed to be fitted (to ensure water did not penetrate) but were absent. There was a gap and surrounds needed to be sealed (but had not been sealed). He did not believe that someone could maliciously take off aluminium or plastic angles: if someone did, silicone and pop rivet and general evidence of original installation would be evident. There was a very slim possibility that the angles could be taken off because of the damage done to the window in the process. 4. (item 19) external stairs. Mr O'Donnell was challenged as to whether he had or did not have, regard to structural plans. He indicated that he had regard to the architectural plans (Appendix 5 to his report). The CDC plan indicated the stairs with handrails, but the configuration of the stairs did not match the stairs that were actually installed (T 261-263). Mr O'Donnell accepted (T 283-284) that it was the plans prior to the construction certificate that he relied upon when expressing his view that stairs were to be provided. 5. (item 20) this item concerned the condition of the concrete or masonry for the decks, pergolas, balconies or verandas. Mr O'Donnell explained that he had regard to the tender where this was one of the inclusions. 6. (item 21) Veranda front upper level: the absence of any overflow provision to prevent the entry of stormwater internally into habitable areas within the building failed to comply with AS/NZS 3500.3. The parapet was not flashed in accordance with AS 4654.2. Mr O'Donnell was challenged about his view. He explained that the overflow provided so that flooding of the standard drain would not result in flooding of the water in a building. Asked by Mr Mehndiratta whether a drain could be damaged by someone, Mr O'Donnell considered that it was most improbable that somebody could cover up the drains with tiles so as to create a nuisance for someone down the track. 1. (item 22) Front Entry Balcony: the trims were falling off. 2. (item 23) Garage: the door was not operating. Mr O'Donnell regarded it as unlikely that someone would deliberately damage this. 3. (item 24) Mr O'Donnell observed that the contractual inclusions required the driveway to be colour finished. Mr O'Donnell explained that his views about the driveway was based upon the post-contractual variations. He also referred to Appendix 4 (the Tender) in his report at point J. 4. (item 25) Fences: there was building mortar damage. There was 16 m of fencing damage to the right side (western elevation) which needed to be replaced 5. (item 27) Drainage Front: drainage of the front of the property appeared inadequate. Surface water had been ponding. In the front of the garage, a plastic non-trafficable drain had been used which do not comply with AS 3500.5, with water being directed into the building instead of the drainage system. 1. Mr O'Donnell further opined that there were certain instances of non-compliance with the contractual requirements. These were set out in detail in section 10 of the report. He summarised these as follows: 1. no insulation was provided to the ceiling cavity; 2. internal doors are required to be 2.34 mm. instead they were all 2.040mm in every room; 3. there was veneer laminate instead of solid timber flooring; 4. shower screens, the main and ensuite was to be frameless; but a cheaper frame system had been installed; 5. Caroma Nexus tab mixes were not provided for any of the sink taps. Instead a Summeri mixer had been installed; which was a much cheaper and poorer quality brand; 6. the bath was specified as Corona Aura but this was not what was performed; 7. the towel rails was supposed to be Corona Cosmo. Instead they were a much cheaper brand that had fallen off the wall. 8. For the stairs, the requirement was for them to be of solid timber with handrails for glass. Instead there were MDF trends and risers that were used; 9. the rear alfresco stair was not in accordance with the plan. There was no handrail; 10. there was no overflow on the front veranda exposing the backflow of water into the building with no drainage; 11. as to the driveway and paths, the drive was to be coloured finished. 1. Mr O'Donnell believed that these were minor defects that could have been rectified during the statutory time period. Mr Mehndiratta's challenges to Mr O'Donnell's opinion about rectification works and costs 1. The cost of the proposed rectification works were set out in detail in the Scott schedule. Mr O'Donnell was specifically challenged on the reasonableness of costs in the following limited respects: Item 2: Mr O'Donnell maintained that the price ($1,650) was appropriate to get a carpenter to install, with the quads themselves painting, for three items. Item 6: Mr O'Donnell denied the suggestion that the price ($1,425) was exorbitant. There was a requirement to remove the film which was all over the windows, including upper storey removal. Two workers were now required, and either or both would be working from heights. The job would take all day. Item 7: after being challenged as to the costs for this item, Mr O'Donnell said that his estimate provided for height doors to be of the right dimension (2.340) in the tender rather than what was actually utilised for the lower height doors (2.040), that it needed ravens on the external doors so that water did not blow in and the doors needed to be 'retrofitted'. The requirement for weather strips to be installed for external doors was under the National Construction Code. Save for the weather strips, where there was a quote from Bunnings, the balance of the costs estimates were from Rawlinson. External doors were more expensive than internal doors (which he had priced at $178 each). Mr O'Donnell was also challenged as to the labour costs for replacing the two external doors that he identified. He resisted this, explaining that the work included cutting the head of the doors and re-installing a lintel, the plaster, the architraves the doorjambs and the doors (he also indicated that he had personal experience in changing doors). Items 10 & 12: I have noted Mr O'Donnell's evidence that these items raised similar issues. Mr O'Donnell effectively explained that his description of the various cost components for this item had to be viewed as a composite whole. There was considerable work in pulling a bathroom out and protecting the adjacent areas. The re-installation of the cabinet, for example, required the removal of tiles (to put the fall that's missing) and re-installation of the membrane with silicone sealant. The work required rectification of falls on the floors in the bathroom. Mr O'Donnell explained that in many instances of rectification work, labour could be combined on certain items. But in his view, that was not the case when any builder performing remedial works would need to work on 3 bathrooms. Mr O'Donnell disagreed with the proposition put to him by Mr Mehndiratta that it would be sufficient to fix the falls by taking off the tiles, putting a waterproofing again and membrane and then retiling it. It was impossible to fix the falls not to pull out the shower screens and there was no guarantee that a problem would not be caused to the waterproofing membrane. For item 10, there was an additional cost for shower screens. In his costing, Mr O'Donnell bulked these. Item 15: Mr O'Donnell was referred to the third aspect of this work, concerning staircase glass handrail to be installed as allowed in Exhibit 1. The figure of $12,000 was additional to what was contained in the Post-contractual variations, but Mr O'Donnell was instructed to assume they had contemplated allowance for an upgrade in the form of a handrail. In relation to the brick cleaning (the window sills), Mr O'Donnell's costing for this feature was in item 17 of the Scott Schedule. Item 16: Mr O'Donnell explained that this related to the costs of joints, the spacing of them and exterior tiling. 1. Mr O'Donnell the aggregate sum for rectification works was $151,975. Once overheads (item 30) were added (for profit, supervision, at 25%) for the sum of $37,993.75, the total cost of completing and rectifying works was $189,968.18. The GST component (item 32) on that ($18,996.88) would increase the total to $208,965.60. 2. As to overheads and GST components, Mr O'Donnell was challenged on both allowances he made. But in relation to the overheads, he said that the current rate on a rebuild, requiring supervision, was actually 35%. He said he added to GST as that was a 'government requirement.' 3. Mr O'Donnell then took into account the amount that the owners had 'overpaid.' That assessment was predicated upon the assumption, of a $510,000 contract and the amount actually paid to the to the builder ($532,928 – a figure which Mr Mehndiratta did not contest). However, as I have found, that assumption was not correct for two reasons. First, there was no cap on variations. Secondly, there were some variations claims which the builder had established and which had not been paid. As indicated, I have quantified those as being the sum of $45,800. The ultimate contract price was not, as Mr O'Donnell assumed $510,000 but rather, when those variations were added, $555,800. Taking into account the amount paid to the builder ($532,928), there was no component for 'amount overpaid' to be added to the Scott Schedule. 4. With these adjustments, items 29-33 to the Scott Schedule should read as follows: 29. $143,254 30. $35,814 31. $179,068 32. $17,907 33. $196,975 1. No allowance is made for any overpaid amount to the builder. General points 1. Other, more general, points that were raised in the course of Mr Mehndiratta's cross-examination of Mr O'Donnell were that: * After inspecting the documentation he was supplied with, Mr O'Donnell spent up to three and a half hours on his site inspection, before completing his site inspection report. He believed that was sufficient time; * He understood, on the basis of information he was supplied with, that the works took occurred between late 2016 and July 2018; * He took a final occupation certificate to denote the point of practical completion, when the house was fit for intended purpose (being lived in), "without being 100% complete"; * When indicated that an occupation certificate was issued at 3 July 2018, this did not change any of the opinions he expressed in the report; When it was pointed out that a copy was sent to Council, Mr O'Donnell attributed this to a Council requirement. * When he conducted the site inspection, he used a variety of tools (camera, digital moisture reading meter, a calibrated digital level and digital self-calibrating laser level that works on a gyroscoping levelling device ) to assist his observations; * When setting out the total in the Scott Schedule (over $230,000), Mr O'Donnell explained that he used Rawlinson's 2022 Handbook for quotes to insert the information in the relevant column; although in some cases, this was supplemented by his use of Google to obtain prices for particular items (such as round mixers); * Mr O'Donnell confirmed the documentation he had been supplied with as being in section 4 of the report; * Where Mr O'Donnell used the description 'Amended Contract' in Appendix 3, he was essentially characterising the effect of a document that appeared in Appendix 3, with the title 'Post Contract Variations' which, on p 2 of the particular document, contained the date 20 November 2016 (and what purported to feature the Builder's signature); * It was pointed out to Mr O'Donnell that the two versions of the contracts in Appendix 3, at various instances, omitted certain details. Mr O'Donnell was referred to different details in the version of the contract which Mr Mehndiratta relied upon (which appeared in Exhibit A). Those details filled in blanks which appeared in the version of the contracts given to Mr O'Donnell on behalf of the Owners. * Mr O'Donnell was also referred to a variety of other documents which appeared in Exhibit A (beginning at pp 44-51 (incl), 52, 53, 56 and 89 , the last document in this sequence being described by the Builder as 'Tender with Detailed Specifications' and was purportedly dated 23 December 2016). Mr O'Donnell – who was sent these documents (by email) during the course of his cross-examination – said that none of these documents made any difference to his conclusions or opinions on the completeness of the works or their defective nature; * Mr O'Donnell was referred to the last 4 pages of Exhibit B (which was also sent to him when under cross-examination). He interpreted the last 4 pages as a statement of the documents created by and then provided to the certifier. Mr Mehndiratta (generically) challenged Mr O'Donnell's opinions when compared with these documents. They did not alter Mr O'Donnell's opinions. Moreover, insofar as reliance was placed on the list of occupation certificate documents (in Exhibit B), Mr O'Donnell pointed out that one of the certifiers (for the BASIX compliance certificate) was none other than Mr Mehndiratta. It was put to Mr O'Donnell that the certifier had to inspect everything, but Mr O'Donnell explained that a certifier collected the documents listed so that they could be lodged with the Council – the certifier was not a supervisor. The private certifier could assist the builder to conduct checks of the works. In re-examination, Mr O'Donnell said that the word 'satisfied,' with reference to 'status' of certain certificates, had no bearing upon his view as to whether the works complied with Australian standards. His understanding was that the certificates did not provide any practical guarantee of compliance and that it was not uncommon in construction litigation that defects would emerge after such certificates were created; * Mr O'Donnell said he was not related to the owners and his fees, as an expert, did not depend upon the outcome of the litigation. He denied meeting either of the owners during the first week of the hearing. During the course of the hearing, when he was giving his evidence, he had communications with them regarding invoices he had issued, but not about the content of his evidence; * Mr O'Donnell indicated that he had a prior association with Mr Mehndiratta, in earlier litigation. He stated his general belief that a client was entitled to know if he felt any bias towards a builder (whose interests were different to the client) would impact his professional judgment. He said that he had disclosed that prior experience to the Owners. He also said that it was the owners who approached him, initially, about his willingness to provide a report in this case. It was put to Mr O'Donnell but he rejected the proposition that, given earlier builder's expert report(s) affecting the plaintiff prior to this proceeding, he had 'cut and pasted' the contents of that or those prior report(s) in Exhibit 4. * Mr O'Donnell was referred to the inclusions (Appendix 6) in his report. He explained that the Owners had been provided him with the pamphlet from Diamond Elite Previous Solutions that appeared in Appendix 6. * When he was referred to the NSW Fair Trading Rectification Order, post-dating the owners entering into the property (on 8 August 2018) Mr O'Donnell said that this document had no influence on his opinion. There was no specific list as to what needed to be done. He appeared to deride the weight to be given to the document as an attempt by someone with the department to assist builders to resolve issues. In re-examination, he indicated that he understood that NSW Fair Trading proceeded on the presumption that a builder was still engaged in undertaking work and was willing to rectify defects at the conclusion. * Mr O'Donnell was referred to a document titled Specifications which he indicated that he had received with the letter of instructions to him. * Mr O'Donnell was referred to the copy of the architectural plans he was supplied with (Appendix 6). The top of the plans in that bundle had indicated certification, but not the remainder. His experience was that each of the plans would bear the stamp of certification. But if, on architectural plans, there was an absence of express certification, the Builder would need to take pro-active steps to alter the situation. * Mr O'Donnell dismissed the significance of emails (Exhibits G and H) showing that the owners' Bank had requested a valuer inspect the property prior to making a progress payment. The valuer was not a building inspector. * Mr O'Donnell was shown a full version of structural drawings (Exhibit J) and asked to compare it to the drawings in Appendix 5 of his report. He indicated that he had not previously been supplied with the plans Mr O'Donnell opined that the significance of the drawings was to show that the Alfresco did not have stairs. That being so, in his view, the Builder should have given a credit to the owners. He also said that receiving structural plans did not affect his opinions about the completeness (or otherwise) or defects (if they arose) in his report since he was not instructed that there were any structural concerns about the state of the property. * Mr O'Donnell was also shown a document, titled 'Record of Inspection' (Exhibit K). He understood that this was a record of the documents provided by the certifier upon inspection. He did not regard this as relevant to the existence or otherwise of defects. Specifically, and in connection with item 21 in the Scott Schedule, he opined that certification of work had been provided by a licensed plumber in circumstances where the work was unsatisfactory. Submissions The owners' submissions 1. The owners submitted that the Court should accept Mr O'Donnell's evidence. Mr Lambley acknowledged that some of his answers were long-winded and agreed that Mr O'Donnell harboured a negative attitude towards Mr Mehndiratta. Nevertheless any bias he had against the latter did not infect his opinions. 2. Mr Lambley made other submissions in anticipation of what Mr Mehndiratta was likely to submit: * As to the delay in the builders affecting repairs to their property, the Court should accept Mr Barai's evidence that he had arranged for several urgent repairs (such as the gas connection and plumbing) and had otherwise adjusted their living arrangements to deal with the defects (such as using only 2 of the 4 bathrooms). Mr Barai's understanding was that whilst the proceeding was pending (it commenced in August 2018), he should refrain from making alterations to the condition of the property until a building expert was engaged; * As to the delay (four years) in engaging a building expert, there was no continuous delay of that length. The owners had engaged another builder expert (Capital Building) and this builder had provided a draft report to Mr O'Donnell; * The circumstance that the builder obtained an occupation certificate was not conclusive as to the existence or non-existence of incomplete or defective works: as Mr O'Donnell explained, such report did not prove that the works were performed according to specifications. * The result of the Fair Trading inspection was not conclusive either: Mr O'Donnell's sceptical view about such inspections should be accepted. 1. The owners submitted that the builder had ample time from the service of Mr O'Donnell's report (11 November 2022) to prepare an independent expert report in response, but did not do so. Other than any admissions or qualifications that Mr O'Donnell made in the course of his cross-examination by Mr Mehndiratta, there was, in substance, no independent expert evidence that contested his conclusions. What Mr Mehndiratta had stated (in Exhibit B) amounted to only generalised assertions. In the discrete instances where Mr O'Donnell's conclusions were challenged (such as in relation to items on the Scott Schedule), he gave plausible evidence in response. The builder's submissions 1. Mr Mehndiratta emphasised that the owners' bank had released final payment after its valuer had inspected the property. 2. Mr Mehndiratta argued that any damage to the stormwater system could be sheeted home to Mr Barai, who was not a qualified landscaper. He also argued that the Court should find that it was Mr Barai who was responsible for the damaged garage door. 3. Mr Mehndiratta emphasised the content of the Fair Trading Rectification Order (Appendix 7 to Exhibit 4). Not only was the box not ticked to indicate the inspector's view that the work done was defective, but also, the order that the builder complete the works was conditional: upon being given reasonable access to the site and making payments as per the contract agreement. 4. Mr Mehndiratta criticised (without singling out either of them individually) other aspects of the owners' evidence. The suggestion of rusty fittings in the bathrooms was not consistent with a doors that were made of timber. If their evidence was to be accepted, it would mean that they were exposing their teenage daughter to hazards. If they were right about the existence of defects, they did not provide quotes to prove that they had sought repairs. 5. Mr Mehndiratta criticised Mr O'Donnell on many levels. He submitted that: * Mr O'Donnell lied about his qualifications as a licensed builder. He was only qualified to conduct pest inspections; * Mr O'Donnell lied about how long he conducted his site inspection for on 15 September 2022 (with reference to the different recollections of the owners); * He did not explain how he got access to the property for his site inspection; * In breach of the law and/or the expert code of conduct, Mr O'Donnell did not disclose to the owners his previous dealings with Mr Mehndiratta which suggested a bias against the latter; * Mr O'Donnell did not take into account documents which would need to take into account if he was to prepare a report containing accurate opinions. When I asked Mr Mehndiratta what documents he was referring to (ie those which Mr O'Donnell did not, but should have, taken into account) Mr Mehndiratta referred to: (a) the contract of 23 December 2016; (b) The Tender and Specifications of 23 December 2016; (c) the CDC Approved plans (Exhibit J) 1. Mr Mehndiratta also asserted that Mr O'Donnell did not use the right tools to conduct an inspection. Consideration Statutory provisions 1. Section 18B(1) of the Home Building Act: (a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract …. (e) warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling 1. Section 18G of the Home Building Act provides that: "A provision of an agreement or other instrument that purports to restrict or remove the rights of a person in respect of any statutory warranty is void" 1. As I have noted the contract – whichever version is accepted – acknowledged (by clause 9) the application and operation of s 18G. 2. Section 18E(1)(b) provides for a limitation period to commence a proceeding for a breach of the statutory warranties in the following terms: "the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case". 1. The 'warranty period' starts on completion of the relevant work to which it relates (s 18E(c)), but if the work is not completed, it starts (relevantly) on the date on which work under the contract ceased (s 18E(d)(ii)) which date, as I have said is in July 2018. 2. For the purposes of s 18E, "major defect" means-- (a) a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes, or is likely to cause-- (i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or (ii) the destruction of the building or any part of the building, or (iii) a threat of collapse of the building or any part of the building, or (b) a defect of a kind that is prescribed by the regulations as a major defect, 1. The cross-claim, to repeat, was filed in August 2019. That date fell within the 2 year limitation period for an action for breach of the statutory warranties in relation to minor defects and within the 6 year period for an action for breach of statutory warranties for major defects. General assessment of Mr O'Donnell and his evidence 1. There was some debate about the currency of his licence to build, but I accept Mr O'Donnell's evidence on this point; which I understood was to the effect that the requirement for a builder's license to be patently apparent on the Fair Trading register was affected by whether the person was engaged to perform building work other than as an owner/occupier. The last time that Mr O'Donnell performed building work himself was on his own home. Further, I do not necessarily accept the implicit premise advanced by Mr Mehndiratta that the weight to be given to Mr O'Donnell's opinions is diminished by him not being a practising builder, as distinct from a person who has qualifications of a builder. As his resume indicates, Mr O'Donnell was well qualified to express the opinions that he did. 2. Mr O'Donnell's answers in response to Mr Mehndiratta's extensive cross-examination of him amply demonstrated his competence as a building expert. He did not hesitate to supply reasoned answers to every question raised of him. Indeed he was positively loquacious in many instances; providing further information than was necessary to answer the question. He did not suffer, in the least bit, in comparison to a 'practical' builder like Mr Mehndiratta, during the many adversarial exchanges they had in cross-examination. 3. If I was to be critical of Mr O'Donnell, it was in a tendency in him to spar with Mr Mehndiratta and, on occasions, some of his answers went beyond his basic remit of reporting the results of his inspections. He appeared determined sometimes to prove Mr Mehndiratta did something wrong. I also accept Mr Mehndiratta's point that Mr O'Donnell had a degree of dislike of Mr Mehndiratta. To this extent, there was a loss of objectivity. In fairness to Mr O'Donnell, given the manner in which Mr Mehndiratta cross-examined him and the content of some of his questions, which squarely challenged his objectivity and honesty, it is not surprising if Mr O'Donnell appeared to be provoked on occasions. 4. It is unnecessary to determine whether Mr O'Donnell disclosed any 'conflict of interest' to the owners, or their solicitor, before he was retained. The circumstance, if it was true, that he had previously opined in a way adverse to Mr Mehndiratta did not raise a conflict of interest; nor disqualified him from expressing opinions in this litigation. No foundation was made for the proposition Mr Mehndiratta put to Mr O'Donnell in cross-examination that he had 'cut and pasted' apparently damning opinions of Mr Mehndiratta previously expressed in this particular report. Mr Mehndiratta did not deign to show to Mr O'Donnell any instance of any opinion in a previous report in other litigation being identical or substantially identical to his opinion in this litigation. 5. It was not suggested to Mr O'Donnell in what way he did not comply with the Expert Witness Code of Conduct; as Mr O'Donnell had said he had complied with. For that reason alone, it would be unfair of me to find that he did breach the Code. For what it is worth, it did not strike me as even arguable that any of the matters set out in paragraph 3 of that Code appeared to be breached. 6. Notwithstanding the (relatively mild) criticism I have made of a loss of objectivity, I have no doubt that Mr O'Donnell deployed his skill and expertise in a professional manner, consistent with his obligations. Most professionals, or at least honest and competent ones, are able to transcend any personal opinions about the work of other persons about whom they may dislike: the critical question when issues of this kind emerge is whether it is demonstrated, in a transparent way, that an expert's personal antipathy to the professional who undertook the work being examined has a clear connection to the ultimate conclusions so as to infect them. I am not persuaded that this was shown by Mr Mehndiratta. 7. When challenged about his partiality, Mr O'Donnell not only persuasively indicated that his fees were paid upfront, and therefore were not contingent upon a successful outcome (to the owners, who were responsible for the payment of those fees) to the litigation, but without prompting, he alluded to his paramount duty to the Court; as he had done in the affirmation of his adherence to the Expert Witness Code of Conduct contained in his report. 8. He did not display any embarrassment when shown documents that he had not previously seen and acknowledge that earlier evidence should be corrected (his analysis of Item 19 in the Scott Schedule being an example). Overall, and on balance, his evidence under cross-examination instilled confidence in me as to the probative value of the opinions in his report. 9. Subject to a qualification, Mr Mehndiratta's attack on the weight that should be given to Mr O'Donnell's report, because of his omission to refer to certain documents which were not provided to him, was baseless. Firstly, I agree with Mr Lambley's submission that experts are not responsible for the evidentiary material that they are supplied with (even if they ought to disclose whether or not that material is insufficient to provide an opinion). As explained to Mr Mehndiratta in argument, criticisms about the adequacy of materials that a party's expert witness rely upon are usually pointed out by the opposing party's own expert witness. That process did not occur here. So too, I would add, if criticism is to be made of an expert witness' methodology or process through which the witness forms an opinion, it also usually arises from the opposing party's expert. Without his own expert, however, Mr Mehndiratta was perforce left only to argue why he would have acted differently to Mr O'Donnell. His opinions about the appropriate methodology to opine upon allegations of defective or incomplete work and conclusions to be drawn were anything but independent but rather were inherently self-serving. 10. Secondly, Mr Mehndiratta did not point to anything in the documents he says Mr O'Donnell ought to have (but did not receive) that was likely to alter his opinions. There was nothing wrong with his omission to refer to the first two documents Mr Mehndiratta alluded to – the version of the contract of 23 December 2016 and the Tender and Specifications document of the same date – since, as I found earlier, neither of those documents had any valid contractual status. As to the CDC Approved plans (Exhibit J), aside from a bare assertion, Mr Mehndiratta was unable to point to anything in those plans to demonstrate how an opinion from Mr O'Donnell was wrong. 11. Thirdly, Mr O'Donnell manifestly indicated that when shown certain documents for the first time during the hearing, they did not change his conclusions in any material respect. 12. The qualification concerned item 19 in the Scott Schedule, concerning external stairs to the property. Mr O'Donnell accepted in his evidence that he had worked from the architectural plans he had been supplied to the assumption that concrete stairs were to be constructed, but the structural plans did not support that view. 13. In my view, this is a singular instance where different documents made a material difference. 14. Accordingly, I do not accept item 19 of the Scott Schedule as being a defect. Evaluating Mr Mehndiratta's submissions relating to defects and incomplete works 1. Contrary to his submission, the circumstance of Mr Mehndiratta's obtaining of an occupation certificate did not have the effect of shielding or immunising him from a claim for damages for incomplete or defective works. That is not its purpose. As Mr O'Donnell explained, the functional significance of the occupation certificate is the indication that the home is fit for the intended purpose of being habitable. But where, as is often the case, defects are latent, problems may only become manifest later in time and are observable by experts. 2. I share Mr O'Donnell's views of the weight to be given to the various compliance certificates supplied as part of the process for obtaining an occupation certificate. Notable in this regard was Mr O'Donnell's point, raised in cross-examination, that Mr Mehndiratta himself was the author of the Basix Compliance Certificate referred to in the occupation certificate documentation (within Exhibit B). Neither that certificate, nor the other certificates within that list of documents were produced to the Court. The other authors (apart from Mr Mehndiratta) were not called to give evidence which would open their views for potential scrutiny. I touched upon the risks of a party relying upon business records, without accompanying evidence earlier. 3. In addition, it struck me that there was an air of desperation in the owners to move into their home, given the difficulty in them extending their alternative living arrangements. Attempts by the builder to use this as leverage for the payment of monies he claimed or approval by laypersons in a vulnerable position did not, in the circumstances, lead me to infer that the owners, by their conduct, admitted that their home was free from defects or was complete. As to the extent of leverage by the Builder, it was telling that whilst he was able to email the occupation certificate to the owners bank on 12 July 2018, to facilitate payment of the final progress payment claimed, he still had not emailed it to the owners despite requests that he do so until many days after. I infer he deliberately delayed doing so to force the owners to comply with his demands for payment. The owners desperation was also evident in Mr Barai's email to the builder on 16 July 2018 (Exhibit W) 4. As was indicated by both clauses 9 and 23 of the written contract, the statutory warranties are not ousted by contractual provisions (including variations) which reduce or limit the builder's obligations. In this way, the 'Comprehensive Handover Inspection Summary,' purportedly dated 5 July 2018, even assuming it was signed and understood by the cross-claimants, would not have ousted the operation of the statutory warranties. 5. As to Mr Mehndiratta's reference to the NAB's release of final payment after a valuer's opinion, I agree with Mr O'Donnell that a valuer's opinion is inherently not a safe guide to assisting whether outstanding works are defective or incomplete. I note that the valuer's report is not even before the Court. 6. I have considered the builder's associated points regarding the owners' willingness to remain in a property notwithstanding what they asserted were defects and their omissions to obtain quotes from other builders to effect repairs. It is not the case that the owners did not do anything at all. Mr Barai's recollections of performing certain 'emergency' repairs and complaints about other defects was reflected in his email to the builder on 3 September 2018 (Annexure 'F', p 61 of Mr Barai's affidavit). 7. Moreover, these were points which might have supplied an argument that the Owners had failed to mitigate their loss and damage in a Defence to the Cross-Claim. That is a point that could and should have been the subject of pleading so that the owners had a fair notice of the point. I note that at the time that Mr Barai (at that time the sole cross-claimant) filed the original version of the Cross-Claim (21 August 2019), it appears that the builder was legally represented. In the cross-claim, Mr Barai indicated that as part of his Defence and to support the cross-claim, he was asserting a series of defects and breaches of contract which, for a contract that was palpably subject to the Home Building Act would reasonably have suggested a reliance upon statutory warranties. The need to plead a failure to mitigate (a general pleading requirement: see r 14.14 of the UCPR) was all the more apparent where s 18BA of the Home Building Act operated to regulate the obligations of owners who complain of a breach of statutory warranty. 8. At any rate, even if it was fair to treat with the builder's submission in this regard, the points he raised were not compelling. Whether it was reasonable or not for the owners to place repair work in abeyance until the resolution of this proceeding, in anticipation of recovering a judgment on their cross-claim, it did not derogate from the force of the owners' lay evidence of the existence of defects and it assuredly did not derogate from the force of the evidence of Mr O'Donnell. 9. Further, in the end, I find that the owners did, in fact, engage another building expert. This much was apparent from Mr O'Donnell's description of the documents supplied to him by the defendants' solicitor, including a draft report received from Capital Building Consultants. This document was not disclosed by Mr O'Donnell, and its content was not otherwise adduced in Court, but it strikes me that it was likely to have attracted client legal privilege; so that no inference adverse to the owners from not tendering it could be drawn for that reason alone. 10. If I am wrong about that, however, there was nothing to stop the builder from requesting Mr Lambley's firm to voluntarily produce the draft report or (if that request was not acceded to) to issue a notice to produce to the owners or subpoena to Capital Building Consultants to produce the document (either of which form of court process might have generated a claim by the owners of privilege for the purpose of withholding production of it). This is another reason why I do not draw any inference adverse to the owners from their not tendering what was a draft report. 11. Further, as I explained to Mr Mehndiratta in an exchange in closing argument, I would have expected Mr O'Donnell to conduct his own inspection and form his own conclusions independently from whatever appeared in the draft report from Capital Building Consultants. He was not tasked to review the correctness of the conclusions of a different expert builder. In no way does the fact that the owners appeared to countenance the preparation of a report by a different building expert derogate from the force of Mr O'Donnell's conclusions. 12. I take into account the Fair Trading rectification order. But it does not have the effect that Mr Mehndiratta would wish it to have, in the sense of providing conclusive evidence against the owners. Part of the difficulty with that submission is that it runs contrary to the legislation. This rectification order was made pursuant to s 48E of the Home Building Act. It emerged after a building dispute had been notified by the owners (s 48C). But the content of s 48F indicated its limited effect. That provision is in the following terms: "(1) Except as provided by section 51, a rectification order does not give rise to any rights or obligations. (2) Subject to section 48I, a rectification order ceases to have effect for the purposes of section 51 if the matter giving rise to the order becomes the subject of a building claim." 1. Section 51 (a provision under Part 4 of the legislation that concerns disciplinary proceedings against building professionals) was not engaged. The effect of the provision, therefore, was that the rectification order did not give rise to any rights or obligations. 2. Even without this legislative indication, I take into account Mr O'Donnell's jaundiced, if not slightly cynical view of such reports. I do not accept that Mr Nicholson, with all respect, was likely to have conducted a comprehensive view of the property to examine suggested defects. That would have taken a deal of time and effort. It would be improbable that an agency of the State with as broad a remit as Fair Trading would undertake the task (absent an exceptional reason) where the complainant could not engage a consultant to perform the task of identifying defects itself. Any notes that Mr Nicholson may have made from his own inspection were not tendered as business records of Fair Trading. 3. I place weight upon Mr Barai's contemporaneous complaints to Mr Mehndiratta, conveyed by email (eg Annexures F and G of Mr Barai's affidavit) and conveyed by Ms Mahjabeen (Exhibits V and T) regarding the condition of the property from the second half of 2018. Mr Mehndiratta did not adduce any emails which responded to the substance of these complaints. Mr Barai's complaints (and Mr Mehndiratta's lack of responsiveness to them) were additional evidence of the truth of what was complained of. 4. I do not accept the Builder's propositions, which were advanced to Mr Barai in cross-examination, that Mr Barai had tampered with the property, either in a way that was deliberately intended to damage the condition of the property or, unintentionally (such as the garage door or stormwater system). In particular, I find that the suggestion that Mr Barai or anyone else 'tampered' with any part of the works is preposterous. These submissions were speculative and should not have been made. It is almost impossible to conceive of any rational basis for an owner to deliberately damage property that they continue to live in. Ironically, the submissions tended to undercut Mr Mehndiratta's criticism (addressed elsewhere in these reasons) about the owners' inaction in trying to address the effects of the damage to the property. I also find that Mr Barai's denial of tampering (deliberately) with any feature of the property was supported by the instances in Mr O'Donnell's evidence where the expert decried the high improbability of tampering with the property for the reasons the expert expounded. 5. I accept Mr O'Donnell's evidence of both the incomplete and defective nature or extent of the works which the Builder performed. I agree with the owners' submission that after being thoroughly cross-examined by Mr Mehndiratta, Mr O'Donnell did not resile from his opinions. The explanations he supplied in response to Mr Mehndiratta's challenges on individual items in the Scott Schedule were not proven to be implausible. 6. For all of his assertions (in Exhibit B) of the state of the works and approvals from subcontractors, Mr Mehndiratta's assertions were just that: they were bare assertions. They were not independently corroborated (except as to the reference to inspections I have earlier addressed) and were not exposed to scrutiny. I have indicated the forensic consequences of my adverse findings of his credibility in connection with other issues in the case earlier. Nor did he put to Mr O'Donnell the correctness of those assertions for the latter's consideration. I give very little weight to those assertions. 7. I find that, subject to item 19, there were defects and incomplete works as summarised by Mr O'Donnell's report, and supported by the detail set out in his report. Quantification of rectification costs 1. As indicated Mr Mehndiratta generally had ample opportunity of serving evidence in reply, including the evidence of Mr O'Donnell. Even if he disputed the existence of the defects, it was open to him to have, contingently, served evidence to contest either or both the reasonableness of the rectification works or the quantification of costs of rectification works outlined by Mr O'Donnell which, as indicated, relied upon the Rawlinson guidebook. In terms of adducing evidence, Mr Mehndiratta did not engage with these issues. 2. He again had to fall back on arguments advanced to Mr O'Donnell about the scope of rectification works and the costs of such works during the course of his cross-examination of him. Those attacks (if they could be called that) were relatively few in number however, as summarised earlier in these reasons. 3. Mr O'Donnell did not concede the correctness of the matters raised of him by Mr Mehndiratta; nor resiled from nor qualified his opinions. He said, and I accept, that he had qualifications that would enable him to quantify works and he utilised the authoritative source to enable him to do so. He persuasively explained his calculations in relation to only a few of the items which Mr Mehndiratta tested him on, and there was no evidence to the contrary in relation to those calculations. 4. I accept his evidence of the reasonableness of the rectification works and the costs of rectification works. 5. The cross-claimants are entitled to judgment to reflect the calculations set out in paragraph 303 above. That is to say, they should have judgment in the sum of $196,975. Costs of the proceeding 1. The owners' defence of set-off thus succeeds in extinguishing their liability for unpaid invoices and their cross-claim succeeds in establishing an entitlement to damages for breach of the statutory warranties beyond the point where the quantum exceeds the monetary judgment for the builder's claim. 2. I presently see no reason why costs should not follow the event (Uniform Civil Procedure Rules 2005, r 42.1). Provision will be made, however, in the orders for the parties to apply for a variation of the costs order should they wish to heard on that issue. If that occurs, it will necessitate further directions for submissions to resolve further argument. 3. Liberty to apply should also be given to enable the parties to check the calculations I have made in the light of these reasons. Orders 1. For the foregoing reasons, I make the following orders: 1. Judgment for the plaintiff on the Statement of Claim (as amended) for the sum of $45,800. 2. Judgment for the cross-claimants on the cross-claim (as amended) for the sum of $196,975. 3. By operation of s 96 of the Civil Procedure Act 2005 (NSW), the Judgment for the plaintiff is taken to be satisfied and the judgment for the cross-claimants is reduced by the amount of the judgment in the plaintiff's favour, so as to be $151,175. 4. The plaintiff/cross-defendant is to pay the defendants/cross-claimants interest on the sum of money in order 3 under s 100 of the Civil Procedure Act 2005 (NSW). 5. The plaintiff and cross-defendant is to pay the defendants and cross-claimants' costs of the proceeding on the ordinary basis, as agreed or assessed. 6. If any application is sought in relation to the costs order in order 5, it is to be brought by a notice of motion with supporting evidence, to be filed within 14 days of this judgment and if such motion is brought, the Court will issue further directions on such motion. 7. Liberty to apply is granted on 3 days' notice. ********** Endnotes 1. Home Building Act 1989 (NSW), s48K. It is not apparent whether the owners applied to transfer the dispute to the Tribunal under s 48L 2. Pursuant to r 6.20 of the Uniform Civil Procedure Rules 2005 (NSW). Ms Mahjabeen, who was present in Court at the time, verbally consented to her joinder. 3. L'Estrange v Graucob Ltd (1934) 2 KB 394 at 403; applied in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [45]-[46] 4. Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 ("Sara Lee") at [22]; Concut Pty Ltd v Worrell (2000) 75 ALJR 312 ("Concut") at [19] 5. Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [96] 6. Applying Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 per Kitto J at 144; Concut (at [19] 7. US Secretary of Defence Donald Rumsfield, DOD news briefing, 12 February 2002, https://en.m.wikipedia.org 8. Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133. I note that there has been criticism of this 'inconsistency' point: see N Seddon and R Bigwood, Cheshire & Fifoot The Law of Contract (11th Australian ed, LexisNexis 2017) at [10.6] 9. In reasons for decisions on interlocutory applications during the hearing, I observed that the Builder ceased to have legal representation from November 2020. 10. eg ASIC v Rich (2009) 236 FLR 1; [2009] NSWSC 1229 at [338]-[339] 11. Evidence Act 1995 (NSW), s 69 (3) Amendments 15 September 2023 - Inserted images, corrected formatting and paragraph numbering. 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: 15 September 2023